Tag Archives: Article 8

A case about adoption and the best interests of children.

Application no. 6033/13

Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.

The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as ‘just satisfaction’. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults.

The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still.

Background to the claim

The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children. The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.

At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.

Judge Dedov had the following view of the political background to the ban:

Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.

Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that ‘a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected’ and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this ‘nascent family’.

Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination

All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a ‘right’ to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the ‘final stages’ of the adoption procedure (para 422).

Some applicants were clearly further down the road to establish ‘familial ties’ with the children – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.

The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and ‘their personal development through the role of parents that they wished to assume’. This fell within the scope of ‘private life’ protected by Article 8.

The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.

Russian Government – ban on adoption by US nationals was ‘measure of last resort’ to protect children

The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children’s best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.

There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden ‘epidemic of violence’ against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).

Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398). Also cited was the desire to increase adoptions by Russian nationals.

US parents response – no objective justification for ban

The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was ‘impossible’ to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).

The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children

The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).

The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.

The Court found at para 425:

‘No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.

The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.

The Article 3 breach

The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government’s possession.

Submissions of third party intervenors about the importance of early permanence for children.

At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School’s Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child’s early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying ‘95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday’. As the world became more global, the idea ‘that children belonged in some essentialist sense with their racial or national groups of origin was outdated’ (para 443).

The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child’s right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as ‘unsubstantiated and untrue’ (para 446).

The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.

Damages

The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.

The Partly Concurring Opinion of Judge Dedov

This raises a sad and salient point:

There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure’.

On 27th March 2016 – Easter Sunday – the Department of Education released its policy paper setting out its vision for improving adoption rates. Broadly, it sets out progress re adoption since 2010, current challenges and how they will be met and the government’s vision for the adoption system by 2020.

No one could sensibly argue against much of what is said in this policy paper. Every child does indeed deserve a loving, stable family and for those children who cannot live with their birth parents it is vital to find them permanent new homes as quickly as possible. Adoption is clearly an important option for those children who cannot live with their birth family, providing stability and care which can last long beyond childhood. It is good to hear that the Adoption Support Fund will be increased.

The Government is on a collision course with the law.

But my fear is that this is simply another piece of the adoption agenda which has been promoted by this government for some time now. This is dangerous. Promotion of an agenda is often at the expense of facts. This has clear potential for putting the government on a collision course with the law. This will be a time consuming, expensive distraction and the children will have to watch and wait on the sidelines as it plays out.

Agenda versus facts

The fact that the proportion of children adopted within 12 months has ‘almost doubled’ is offered up as ‘remarkable progress that should be celebrated’. The recent decline in adoption numbers means ‘there is an urgent need to accelerate our reform of the adoption system now’. Thus, from the very outset, the policy paper is built on the assumption that more adoption and quicker adoption is an unqualified good which needs to be urgently achieved.

The foreword states that only 3.2% of children return to care ever year after an Adoption Order is granted, compared to 25% of children on a ‘residence order’. This is from research by Selwyn and Masson in 2014. Thus adoption is offers the best chance for stability for children.

However, it is not clear to me from either the policy paper or the article which it cites (why not link to the actual research??) whether the disruption rates refer to adopted children subject to a care order after adoption or who are accommodated under section 20 of the Children Act (i.e. by agreement with the adoptive parents). Both are ‘looked after’ children but only those subject to care orders will have gone back to court. Thus this simple comparison between disruption rates in adoption and ‘residence orders’ is not helpful without clearly stating what is meant by ‘returning to care’.

Campaigning groups such as the Parents of Adopted Traumatised Teens tell a different story about adoption stability – of adopted children disappearing back into the system under section 20, of inadequate or non existent help and support, of social workers who do not understand issues of attachment and trauma.

It is clear that adoption can be transformative for many children. But it must be the right option for the right child at the right time. Good decisions need to be made about children as early as possible. The government’s vision is to ‘radically reform the children’s social care system’ and to structure reforms around three areas: people and leadership, practice and systems; governance and accountability. There is a need ‘to focus relentlessly on front line practice. We need all services to deliver high quality, evidence based decisions for children every time’.

All of this sounds great but misses the fundamental point. If your foundations are not sound, you can build as fancy a castle as you like; at the first strong wind it will fall. The message from front line social workers, time and time again is that they are overworked to the point of physical and mental breakdown. Case loads are simply too high to permit proper evaluation, analysis and reflection. This won’t change just because the government ministers are looking at it, however intently. Things change when you identify what is going wrong and take active steps to deal with it.

What steps are proposed here to deal with the fact that it is impossible for a social worker who is asked to juggle an unmanageable case load, to deliver ‘high quality evidence based decisions for children every time’ ?

The government proposes:

to launch a new development programme to support social workers to achieve and demonstrate required knowledge and skills and have their specialist knowledge recognised;

publish a new Specialist Knowledge and Skills statement setting out exactly what social workers making permanence decisions need to know and be able to do.

This is a level of magical thinking that is simply embarrassing in a government document. You can set out as many statements as you like telling people what they should be doing, but if those on the ground who are supposed to be ‘doing’ are prevented from ‘doing’ by a harmful working environment then decisions about children will continue to be made in the absence of proper analysis.

The law versus the Government.

The government just doesn’t seem to understand the law and how it operates. That is clear to me when I look in more detail at these proposals for a programme to ‘sharpen up’ social workers, at para 3.34. The ‘robust programme’ they want to develop to support social workers to ‘develop or sharpen skills’ includes:

building skills to ensure that court material is well prepared and clearly argued and developing social workers’ skills in presenting and defending cases in court effectively.

It’s TOO LATE to do anything about the evidence once it gets to court. This is not simply shutting the stable door after the horse has bolted, but after its been sent to the knackers yard and turned into glue.

The Ministers seem to think that the local authority’s case unravels in court because it is challenged in court. However, a poorly prepared case has already collapsed by the time it gets to court; the court process simply shines a light on its demise. No matter how fancy the statement of skills expected of a social worker, silk purses are not generally made from sow’s ears.

However, the government just doesn’t seem to ‘get it’. The general view in this policy paper is that the judiciary share responsibility for the down turn in adoption orders after 2013 following the judgment of the President in Re B-S. That is despite the very clear subsequent reiterations that Re B-S did not change the law. And indeed it did not. The trenchant criticisms of the President were not directed at the law, but the failure of social workers and lawyers to apply it properly and consistently.

The law around adoption has always been clear. Adoption represents the most serious interference the State can impose on family life; it removes the legal status of the birth family and makes the child a member of another.

Thus, a child can only lawfully be adopted when there is no other realistic option. This is the essence of ‘proportionality’ under Article 8 of the ECHR. Not only is adoption the ‘last resort’ but the State has a positive duty before considering adoption to keep the family together, by offering help and support where possible. The European Court has issued a number of judgments making it very clear what is required by the positive obligations pursuant to Article 8 – see Soares de Melo and SH v Italy.

For further consideration of the necessary legal principles, see the post ‘When can the court agree adoption is necessary’ ? [This post also deals with the implications for decisions about adoption of the 26 week timetable in care proceedings – see edit below]

What was going wrong was not that the law was unclear – but that the analysis of children’s circumstances and applying the law was often poor. I have discussed this problem at length in this post – Achieving best evidence and use in Children Act cases. The fundamental point I make is that proper analysis and assessment takes not merely knowledge, expertise and experience but time.

The policy paper may well be right, I haven’t studied all the relevant research in sufficient detail to confidently assert one way or another. Maybe adoption is always the best option for most children and we should be making sure we have as many of them as possible as quickly as possible.

But there are few hurdles to jump in the meantime. Simply saying ‘full steam ahead’ for non consensual adoption, is not going to find favour with either domestic or European law. We cannot simply ignore the demands of Article 8 of the ECHR. There are obvious and immediate tensions between the cry of ‘more adoptions more quickly’ and the positive obligation upon the State to support families to stay together.

How does the government seek to reconcile these tensions? We don’t know because they don’t say. A policy paper that simply discusses its vision for adoption in isolation of what the law demands, is a useless distraction.

If the Government fights the law, the law will win – eventually. The Government’s only legitimacy is that afforded to it by law. It will not be able to resile from Article 8 without enormous effort. But the battle will be long and expensive. And again the children are the ones who will suffer.

EDIT – but this is all about children on placement orders – so what’s the problem?

There is a view expressed that the ‘push’ for adoption will not corrupt or obscure the decisions made about children at an early stage because the government is focusing on children already subject to placement orders. Therefore the proper decisions have already been made about their future with their birth families.

I used to agree with this. I don’t anymore. Particularly not now that care proceedings are limited by statute to 26 weeks. I think there is at least a very real risk that this ideological push for adoption is going to impact on decision making in care proceedings. Cases are going to be ‘rushed through’ with a particular end in mind.

This is a potential breach of Article 8. Fair enough, if that is what you want to achieve, if this is what you think is proportionate. But don’t pretend you are doing something else. Be honest about what you think is important – and be prepared to take the consequences.

I have historically argued quite hard against the existence of deliberate and malicious ‘conspiracies’ to remove the children from the working classes and hand them over to the middle classes. Government – you are not helping me.

The dangers of ‘absolutism’ when considering the ‘interests of the child’.

Many thanks to Clare Fenton Glynn for alerting me to this recently decided case in the European Court – only a French version of the judgment is so far available but I have run it through Google Translate and this seems a pretty good translation.

Summary of the facts and decision

The case involved a family with (eventually) ten children who were first involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents’ poverty and the father’s absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family’s position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted – then aged 6, 5, 3, 2 years and 7 months.

The mother argued that the only reason to justify the adoption was the family’s poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).

The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is ‘necessary’. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).

The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children’s situation and take the appropriate action.

This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:

Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).

The unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.

1. At the origin of the case in an application (No. 72850/14 ) against the Portuguese Republic and one national of Cape Verde, Ms. Liliana Sallete Soares de Melo ( “the applicant”), referred to the Court 5 December 2014 under Article 34 of the Convention Protection of human rights and fundamental freedoms ( “the Convention”).

3. The applicant complained of a breach of his right to respect for family life as guaranteed by Article 8 of the Convention, due to the application of institutionalization measuring seven of his children for their adoption.

4. On 17 February 2015, pursuant to Article 39 of the Rules, the Court asked the Government to implement interim measures to allow access by the applicant to his children and restoring contact between them time ruling on the case. It also decided that the application should be given priority, pursuant to Article 41 of the Rules.

5. On 1 April 2015 the application was communicated to the Government.

IN FACT

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and lives in Algueirão-Mem Martins.

7. She is the mother of ten children:

– S., a girl, born in 1993,

– E., a girl, born on 20 June 1995

– I., a girl, born on 27 August 2001

– M., a boy, born July 21, 2004

– Y, a boy, born August 22, 2005

– IR, a boy, born October 10, 2006

– L. and S., a boy and a girl, twins, born on 18 September 2008,

– A., a boy, born November 13, 2009, and

– R., a girl, born November 25, 2011.

A. On the procedure for promotion of the rights and protection of children

1. The procedure before the child welfare committee and youth Sintra

8. In 2005, the situation of the family was reported to the Committee of Protection of Children and Youth (Comissão de crianças e jovens proteção) ( “the CPCJ”) Sintra the ground that the applicant was unemployed for four years and that the children’s father was polygamous and often away from home.

9. On 4 January 2007, pursuant to Article 55 of the law on the protection of children and youth at risk (lei proteção das crianças e jovens em perigo) ( “the LPCJP”), establishes the CPCJ agreement to promote the rights and child protection ( “protection of the agreement”) with the applicant and spouse concerning minors E., I., M., Y. and IR for a period of one year. This agreement had read the relevant parts in this case:

“1. The mother will retain custody of minor E., I., M., Y. and IR She will care for them, their livelihoods and ensure their education, training, health and all other interests ;

e) (…) seek gainful employment in order to guarantee its financial autonomy. It should present to the entities in charge of the support of this measure evidence about it.

3. The father will have to ensure that the mother meets the above commitments.

4. The father will continue to contribute financially to pay the fee structures for children and primary needs of children.

5. (…) the parents agree to cooperate and collaborate with social workers, accepting their guidelines, recommendations, suggestions and proposals aimed at maintaining living conditions, comfort, and well – being of Defense interests of minors. ”

10. On an unspecified date, the Agreement was approved by the court.

11. On 22 May 2007, a social worker visited the family and found that the apartment where she lived was filthy and that the supply of running water and electricity was cut off for two months due to non-payment of bills .

12. On 31 May 2007 the CPCJ received a new alert because of truancy of I. who was related to the fact that it had to look after her brothers and younger sisters. That same day she hired a promotion procedure and protection of the rights of children and youth at risk ( “the protection procedure”) in respect of children S., E., I., M., Y. and IR

2. The proceedings before the Family Court of Sintra

13. On 26 September 2007 the CPCJ sent the file to the prosecutor’s office at the Family Court of Sintra because of lack of cooperation from the applicant in the procedure of protection framework in place. The prosecutor requested the opening of a procedure for the protection of children E., I., M., Y. and IR on the grounds that the applicant does not have adequate material conditions and that she neglected the children. From that moment, the family was followed by social services team with court (Equipa de crianças e jovens do Instituto da Segurança Social cupboard ao Tribunal) (the “ECJ”) of Sintra.

14. The applicant and her husband were heard, as well as older children and social workers who had accompanied the family. The family home visits also took place.

15. By order of 21 December 2007, the Family Court decided the implementation of a support measure for parents against children E., I., M., Y. and IR (medida de apoio junto dos pais). This measure was extended several times.

16. On 24 September 2008, during a visit to the family home, social services saw that the living conditions were still precarious.

17. A social worker was sent to the applicant to teach him to manage his home, to ensure hygiene and organization of home and care for her children.

18. On 25 June 2009 the court held a hearing pursuant to section 112 of the LPCJP. During this hearing, after taking into account the recommendations of social workers in charge of accompanying the family, the following clauses were added to the protection agreement:

“1. [Parents should] include the IR minor in a facility for children in the next school year.

2. The father will begin paid work and regularize the situation with social security.

3. The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation.

4. The spouses must prove that they actually care for their regularization in the country.

5. Parents must provide the documents required for the study of a potential financial support.

6. Parents must present someone in their family network and / or social may constitute effective support for the family; that person must then appear before the team and / or the court to be coresponsabilisée. ”

Subsequently, CPCJ asked expanding the protection procedure for children L., and A. MS

19. On 9 September 2009, social services carried out a visit to the home of the applicant.

20. On 10 September 2009, E., who was 13 years old and who was pregnant, was received in a temporary reception center to assist women. October 24, 2009, she gave birth to a child who died December 15, 2009.

21. As to S., who was not living with the family for some time, she returned to the family home in October 2009. Aged 16, she gave birth to a daughter December 31, 2009.

22. In December 2009, the ECJ in charge of the case gave a progress report to the court. It stated that the applicant and his spouse had not complied with the commitments made ​​under the protection agreement and include:

– IR that the child was still not enrolled in an institution for children;

– That the father had not rectified the situation with social security;

– That the mother had not proceeded with the operation of sterilization by tubal ligation she had taken any family planning because it had just given birth to another child, a year after giving birth to Twins ;

– That his last pregnancy had not been a medical monitoring;

– The parents were still unlawfully in the country;

– They did not submit their individual family or social network to help them care for children.

23. On 5 February 2010, the ECJ carried out a visit to the family home. She then gave a report to the court with the following observations:

– Vaccinations of Mr L. and MS were outdated;

– The father had reported receiving 366 euros (EUR) of monthly income;

– The applicant had no income;

– The family received 393 EUR per month family allowance;

– The irregular situation of certain members of the family was an obstacle to obtaining social allowances;

– The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

24. By order of 3 March 2010, the Family Court decided the expansion of the protection procedure for children L., and A. MS (about R., enlargement was pronounced by order of 5 January 2012).

25. In June 2010, a social worker was sent to the family to help in the care of the home. For six weeks, she went three to four times a week at the applicant’s home to teach her ​​to organize her home. It also helped him to move to another apartment.

26. On 23 August 2010, the ECJ introduced a report that:

– The father still had not rectified the situation with social services;

– The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation;

– Parents had still not presented with the documents necessary for the study of their financial situation;

– No person had shown available to provide support to the education of children;

– E. resumed his studies and was passed to the next level, but she continued to help her mother support the family remaining;

– I. succeeded his school year;

– Mr. Y. and did not attend school regularly;

– IR and A. were not attending the nursery and stayed home.

27. The court scheduled a hearing on 23 September 2010, but the parents are not comparurent.

28. A new hearing was scheduled for 26 October 2010, at which only S. appeared. During the hearing, it stated that the family situation has improved.

29. In December 2010, the ECJ gave a new report to the court, noting in particular:

– That E. had stopped going to school;

– That I still had not been entered in the register of civil status and does so enjoyed no social grant;

– That Y. and IR were often dirty and they ended up showering in kindergarten;

– There was no dialogue between the family and school;

– The twins were placed with nurses, they obviously lacked health care and they were not properly dressed compared to the seasons;

– Vaccinations of A. were outdated.

30. The ECJ gave a new report on 24 June 2011. This document stated that:

– The family had moved to another apartment whose conditions had been assessed, the applicant did not open the door of his home social workers;

– E. went to school, but continued to look after her brothers and sisters at home;

– I was still not registered in the register of civil status and does not have an identity document;

– The children’s father continued to be absent.

31. At an unspecified date, the prosecution presented its written submissions (alegações escritas) requiring the application of a measure of autonomy support (medida de apoio para a autonomia de vida) for a period of eighteen months against E., docking measure long-term institution (medida de acolhimento institucional duração longa) in respect of I., and Mr. Y ., and an investment of IR measurement, L., S., A. and R. at a person selected for adoption or in an institution for adoption (medida de confiança has selecionada pessoa para a adoção or has Instituição com vista futura adoção) on the basis of Article 35 § 1 d), f) and g) of the LPCJP.

32. On 26 January 2012 the court held a hearing at which neither the applicant nor her husband comparurent. During this, the ECJ stated that the situation of the family was still critical since the agreement was still not respected. She noted in particular:

– The twins were no longer in the manger-payment of hospitality expenses;

– That the eldest child continued to look after her brothers and sisters;

– That I was still not registered in the register of civil status.

33. On 16 May 2012 the court held a hearing (debate judicial). During the latter, the applicant asked the court not to remove him custody of his children on the grounds that she had great affection for them, it does not mistreated and that they were all his life.

3. The judgment of the Family Court of Lisbon North – East – Sintra of May 25, 2012

34. On 25 May 2012, the Lisbon North Family Court of – East – Sintra (new name of the Family Court of Sintra) gave judgment. He decided the application:

– A support measure of autonomy for an eighteen-month period with respect to E.;

– Of the applicant support measure for a period of one year for I., under Article 39 of the LPCJP;

– A child placement measurement M., Y., IR, L., S., A. and R. in an institution for adoption under section 38-A of LPCJP.

Stating that the latter measure would remain in force until the adoption was imposed pursuant to Article 62-A of LPCJP the court declared the forfeiture of parental rights of the applicant and her husband vis- a-vis Mr. Y., IR, L., S., A. and R., and the prohibition of contact with the latter, pursuant to Article 1978-A of the civil code.

To base its decision, the court took into account the reports of the CPCJ and the ECJ. The reasons for the decision read as follows:

“(…) It appears from the facts considered proven that the father is completely absent and the mother is unable to exercise his mother function as evidenced lack of sanitation, food, health care and supervision, the use of inappropriate clothing to the seasons, neglect to include some of the children in a residential institution for children, lack of school support for these and the lack of monitoring of adequate family planning.

In particular, it should be noted that the mother did not register her daughter I. in the register of civil status. This has the consequence that [the child] has no legal existence and can not benefit from social grants (…).

Regarding the lack of hygiene, it has been proven that children were dirty, [they were suffering from] a lack of personal hygiene and clothing, the kindergarten had allowed and Y. IR to shower in the facility, the comrades of I. refused to sit next to her because of its unpleasant odor and the children slept on mattresses soiled with urine (…).

Regarding the lack of hygiene of the apartment where the children lived, it appeared from various visits to the home he was dirty, the children were all sleeping in the same room, the remaining room was used to cram clothing and other products, and sometimes water and electricity were cut (…).

As for the lack of health care for children, we must first address the lack of medical monitoring of pregnancy, and lack of necessary medical consultations and vaccinations required (…).

Regarding the lack of supervision, it appears that the mother leaves bare son outgoing electrical sockets, windows are accessible to children, that pregnancies S. and E. occurred when they were 16 and 13 years, that I, who is 10, left alone with other children to care for them in the apartment, the door is locked (…).

The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

The applicant persisted in its refusal to sterilization by tubal ligation (…).

Finally, as to the lack of adequate family planning, it is important to note that, contrary to the commitment made ​​on 25 June 2009 under the protection agreement, the mother has not submitted sterilization by tubal ligation and that since the original agreement to date, four children were born (…).

Certainly the mother asked during the hearing that the children not be removed because she did not mistreated, she had tenderness for them and they were all his life, reflecting a certain affection for them.

However, the record contains no indication that would suggest she or the children’s father are able to provide a satisfactory response in terms of availability, commitment and collaboration to accomplish the relative function.

(…).

In addition, at least since the year 2007, the lives of children is more assured with the help of third parties (food bank, clothing donated by private individuals and institutions) than parents who do not seriously seek ways subsistence for themselves and their children.

Because of their irregular situation, minor parents do not even benefit from the social welfare benefit.

(…) ”

35. On 8 June 2012, the children’s placement decision was implemented on Y, R, L, MS, A and R, then respectively aged 6 years, 5 years, 3 years, 3 years, 2 years and seven months. The measure was not implemented with respect to Mr. because it was not at the family home at the time of child removal.

36. On 11 June 2012, the applicant and her husband appealed against the judgment before the Court of Appeal of Lisbon. Invoking the best interests of children, they asked that the execution of the judgment was suspended until the end of the procedure. They then alleged:

– That this separation might jeopardize the well-being of children;

– I. their daughter had meanwhile been registered at the civil status;

– They had not considered the submissions that had been made ​​by the prosecutor and that they had therefore been able to respond;

– They were not represented by a lawyer before the Family Court;

– They had been informed of the date of the court hearing after having contacted the Registry by telephone;

– There were no reasons other than their state of economic deprivation to justify the application of the protective measures they considered to be the most serious in terms of their children;

– The measure of placement in an institution for the adoption on children M., Y., IR, L., S., A. and R. was disproportionate to what was alleged against them and due to, according to them, the absence of abuse or violence against them and the existence of strong emotional ties between the applicant and children;

– That the assessments of the family situation were contradictory, the ground that a measure of support to the applicant had been applied in respect of two older while the most severe protection measure had been applied last seven;

– That the applicant was forced to commit to undergo sterilization operation by tubal ligation and the fact of not having taken this commitment had been held against him to justify the protective measures applied against children.

37. By an application dated 19 June 2012 the applicant requested the court information on the situation of children. She also informed the court that she had started a job and she had registered her daughter I. in the register of civil status of Sintra.

38. The action brought by the applicant and spouse was not welcomed by the Family Court, which held that it was brought outside the time limit. The applicant challenged the decision of the court before the Court of Appeal of Lisbon and in the Constitutional Court. On 10 May 2013, it upheld his appeal, stating that the appeal had been brought within the time limit.

39. On 1 July 2013, the applicant requested the court to suspend enforcement of the judgment in order to avoid breaking the family bond between her and the children on the one hand, and between them, on the other.

40. On 11 October 2013, she asked the Court of Appeal of Lisbon to apply provisional measures in order to have access to her children.

4. The judgments of the Court of Appeal of Lisbon

41. At an unspecified date, the Court of Appeal of Lisbon, sitting as a single judge, delivered a judgment confirming the judgment of the court in Lisbon Family Affairs Northeast – Sintra as well as the facts found by the trial.

As for sterilization, Lisbon Appeals Court held as follows in the part of the established facts:

“The mother must prove that she is followed to the Fernando Fonseca Hospital for sterilization by tubal ligation (…).

The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

The applicant persisted in his refusal to undergo the operation to sterilization by tubal ligation.

We accept the facts.

(…) ”

As regards the plea of failure to notify the prosecution’s submissions, the Court of Appeal considered that they had been sent to the address that the applicant had indicated to the court as part of the procedure, they were returned to the court with “unclaimed” (não atendeu) and that the applicant had not proved that they had not been brought to its attention.

The plea of lack of abuse against children and the existence of emotional ties, the Court of Appeal held as follows:

“(…) The absence of abuse may be the same fruit of the lack of vis-à-vis child care, and a” food affection “(carinho alimentar) minimal or no can also be neglect. The argumentation seems therefore misleading.

That he reflected in the facts that were considered as? We fear so.

The facts considered proven amply demonstrate that children have not benefited from their parents’ minimum conditions of dwelling [and] physical and psychological security, a lot of waste covering the soil, water and electricity is cut for two months due to default. In addition, vaccinations [children] are outdated. The mother leaves the house and lets his older daughters take care of [their] younger brothers, the latter thus being prevented from going to school. The mother has never taken steps to register in the register of civil status daughter I. It is separated from the children’s father. This is sufficient to demonstrate the moral neglect. Added to this is the fact that [the mother] does not have and does not demonstrate to have the resources to give children a dignified life, which is enough to operate [the machine] court.

(…) Lack of parental involvement to ensure material comfort to children is in itself great violence that justifies the decision at first instance. Furthermore, it can not invoke the principle of primacy of the natural family.

(…) ”

42. On 26 December 2013, the applicant challenged that decision before the panel of three judges (conferência) the Court of Appeal of Lisbon. March 27, 2014, it confirmed word for word, by the process of copying and pasting, the judgment had been rendered.

43. On 21 April 2014 the applicant appealed on points of law to the Supreme Court. It alleged in particular:

– She had not been aware of the submissions made ​​by the prosecution;

– That the prosecution had requested the application of a placement order in institutions of her children and Mr. Y., that the court had meanwhile ordered the institutionalization of these for their adoption and that he had thus violated the adversarial principle;

– That the Court of Appeal had failed to rule over the developments, namely in particular, she said, she worked since 12 June 2012 and that it had conducted the registration of her daughter I. the register of civil status;

– She had been forced to commit to undergo sterilization by tubal ligation as part of the agreement with the social services, and that it violated his fundamental rights and breached Article 55 § 2 of the LPCJP;

– That the fact of not keeping its commitment had been considered by the court as an aggravating circumstance and that had motivated the placement of children for adoption;

– That the appeal court had not responded to its request for access to his children;

– The act about which it was not proportionate to what was criticized and had been executed force with police intervention, while his appeal was still pending.

The applicant argued further that the interpretation that was made ​​of Articles 35 § 1 g) and 55 § 2 of the LPCJP did not comply with the Constitution and that the non-mandatory representation by a lawyer statement, according it in section 103 of the LPCJP went against the right to a fair trial.

44. By order of 22 June 2014, Lisbon Appeals Court admitted the appeal, without giving it a suspensive effect.

45. Meanwhile, on 20 February 2014, the applicant had submitted an application to the Higher Judicial Council, in which it complained of a lack of response to all requests for access to her children and an inability to visit thereof.

5. The judgment of the Supreme Court of May 28, 2015

46. ​​On 28 May 2015 the Supreme Court delivered a judgment in which it dismissed the applicant’s appeal on the basis of the facts established at trial and confirmed by the Court of Appeal of Lisbon. As regards the plea of failure to notify the prosecutor’s submissions in the proceedings before the Family Court, it held:

– That the applicant had not proved not to have actually received the letter from the court containing the requisitions;

– It had presented February 28, 2012 a request to inspect the file of the proceedings that the court had granted the application and that, consequently, the applicant was well aware of requisitions by that route;

– The date of the hearing notification letter was sent to the applicant’s address was on file and had been returned marked “unclaimed”;

– That the record that a court clerk had communicated by telephone the date of the hearing to the applicant and that it had then requested its postponement, which was refused.

The Supreme Court held further that the Appeal Court had not mentioned in its judgment of the commitment by the applicant to undergo a sterilization operation, it was not based on the -ci and it was therefore not appropriate to refer to it and that the new elements mentioned by the applicant in the court of appeal had been taken into consideration by that court in its judgment. As for sterilization, the Supreme Court held as follows in the part of established facts:

“The mother was not subjected to sterilization by tubal ligation (…) because, in November 2009, one year after the birth of twins, she was waiting for a ninth child (…).

The applicant had said to have shifted to the hospital for sterilization by tubal ligation, but the hospital had denied this information.

(…) ”

47. As to the application of the institutionalization of children in placement measure for adoption, the Supreme Court observed that it could not rule on the compatibility of the measure with the law and not on whether or appropriateness thereof. It found that the facts had been established were considered sufficient and that therefore the legal provisions at issue, namely Article 1978 of the Civil Code and Article 34 of the LPCJP, were not violated.

As regards the complaint relating to a lack of the appeal court response to requests for access to his children made by the applicant, the Supreme Court held that:

“(…) The regime demanded proves visits and found inconsistent with the contested decision and in conflict with it, [that decision] providing institutional care for adoption, with disqualification parental authority, [that disqualification is] also in line with the provisions of Article 1978-A of the civil code (…) ”

She concluded:

“Therefore, in view of the established material reality, there is a particularly dangerous situation when the biological family is unstructured, that the father is absent from the lives of children and the mother demonstrated a great emotional instability, unstable employment and obvious negligence in relation to care due to minor children on hygiene, health, food, housing and education. Accordingly, the decision of the courts in the light of Article 1978 § 1 of the Civil Code and Article 35 § 1 g) LPCJP, to opt for the institutionalization of measures to adopt and , consequently, for the loss of parental authority over minor children, under Article 1978-A of the civil code, is not illegal. ”

48. On 16 June 2015 the applicant lodged a complaint before the panel of three judges of the Supreme Court. She requested a review ( reforma ) of the judgment, citing several grounds for revocation and accusing the Supreme Court for not having ruled on the question of the lack of notification of the prosecutor’s submissions and the date of hearing before the family court.

49. In a judgment of 9 July 2015 the panel of three judges of the Supreme Court dismissed the applicant’s appeal on the grounds that the notification of the date of the hearing had been made to the applicant’s address that appeared in the record, and that the applicant had, in fact, access to submissions and evidence which appeared to support them since it had consulted the case file.

50. The applicant challenged the judgment in the context of an appeal for annulment by which it contested consulting the case file. The Supreme Court rejected the claims by its judgment of 17 September 2015.

6. The proceedings before the Constitutional Court

51. Subsequently, on 5 October 2015 the applicant lodged an appeal with the Constitutional Court, arguing the unconstitutionality of several provisions of the LPCJP and Article 1978 of the Civil Code. She complained in particular:

– The interpretation by the courts of Articles 35 § 1 g) and 38-A of LPCJP, who would have considered that the care order for the adoption could be applied even if the parent had not read the prosecution’s submissions requesting such action and that the notification could be presumed;

– The interpretation by the courts of Articles 35 § 1 d) and g), 45 and 55 § 2 of the LPCJP that would have felt that the non-compliance with the commitment by the applicant to undergo sterilization could be a aggravating circumstance and motivate the application of institutionalization measure for adoption;

– The non-mandatory representation by a lawyer during the proceedings before the courts of first instance, which was laid down by Article 103 of the LPCJP.

52. According to the latest information received, which date back to the 1 st December 2015, the proceedings before the Constitutional Court is still pending.

B. On the intervention of the Court under Article 39 of the Rules

53. Meanwhile, by a fax of 19 November 2014, the applicant had, on the basis of Article 39 of the Regulation, referred to the Court a request to obtain visiting rights to her children who had been placed in care for their adoption.

54. On 17 February 2015, the Court invited the Portuguese Government, under that provision, to adopt interim measures to allow access by the applicant to his children and the restoration of contacts between them for the duration of the proceedings before it.

55. On 5 March 2015, the Family Court had authorized the applicant to resume contact with his children.

56. Since 15 March 2015, the applicant makes weekly visits to his children in the three institutions located in Sintra, Cascais and Alverca, where they have been placed.

II. THE MATERIALS AND THE INTERNATIONAL LAW RELEVANT

A. The concluding observations of the UN Child Rights Committee concerning the third and fourth periodic reports of Portugal

57. Pursuant to Article 44 of the Convention on the Rights of the Child, the UN Child Rights Committee considered the third and fourth periodic reports of Portugal, submitted in one document (CRC / C / PRT / 3-4) at its 1860 th and 1861 th meetings (see CRC / C / SR.1860 and 1861), held on 22 January 2014, and adopted at its 1875 th meeting (CRC / C / SR .1875), held on 31 January 2014, its concluding observations on those reports, the relevant parties in this case are as follows:

“39. While welcoming the existence of a wide range of social assistance programs, including that of emergency social assistance program, the Committee is concerned that many families, especially those found in poverty, do not receive appropriate assistance to fulfill their responsibilities as parents raising children, especially in terms of financial, educational early childhood accessible and youth protection children. The Committee is particularly concerned about the situation of children in families affected by the current economic crisis, who need social measures of positive discrimination, especially single-parent families, families with disabled children and families living in persistent poverty.

40. The Committee recommends that the State party strengthen its efforts to provide appropriate assistance to parents and legal guardians to enable them to fulfill their responsibilities of parents raising children, especially when they are in situations of poverty. It also recommends that the State party ensure that no group of children lives below the poverty line. The Committee further recommends that the State party strengthen the system of family benefits and family allowances as well as other services such as counseling and family counseling, as well as child care and early childhood education, to provide support to the families of two or more children, families with disabled children and families living in persistent poverty, according to the guidance document of the European Commission concerning custody and childrearing.

41. The Committee welcomes the adoption of the law on the protection of children and youth at risk, the steps taken to reunite families and efforts to promote the reduction of institutionalization, in particular by increasing the number of children living in group homes. However, the Committee expresses concern:

a) small number of reception and placement of children in families of families, and facing the widespread use yet to institutionalization, especially the younger children;

(…)

42. The Committee recommends that the State party to implement the following measures – after taking into account the Guidelines for the Alternative Care of Children annexed to resolution 64/142 of 18 December 2009 of the Assembly UN General:

a) Increase support to biological families to avoid investments in alternative structures; strengthen the provisions relating to the protection within the family, such as the extended family, placement in family systems and investment institutions; take all necessary measures to ensure that alternative care for young children, especially children under 3 years, is part of a family setting;

(…)

57. The Committee welcomes the decision of the State party to increase allowances and family benefits for vulnerable households with children, that is to say, single-parent families, families with two children or more, families with disabled children and families living in persistent poverty; it welcomes the expansion of the meal program in schools and the implementation of emergency social program in 2011 in order to minimize the effects of the financial crisis on vulnerable households. The Committee is concerned about the high level of poverty among children and the implementation of austerity measures that have adverse effects on families, which greatly increases the risk of exposing children to poverty and affect their enjoyment of many rights under the Convention, including the rights to health, education and social protection.

58. The Committee urges the State party to intensify efforts to address both the immediate and the long term, the high level of child poverty, including through public policy and a national plan the fight against child poverty. These policies and this plan should consist of the establishment of a coherent framework consisting of priority measures to fight against the exclusion of children with specific and measurable objectives with clear indicators and deadlines, and enjoying a sufficient economic and financial support.

(…) ”

B. Domestic law

1. The Civil Code

58. The relevant provisions in the case of the Civil Code in force at the relevant time, read as follows:

Article 1978
Placement for adoption

“1. For the purposes of an adoption, the court may place the minor in a couple, in one person or in an institution where the affective bonds particular to filiation do not exist or are seriously compromised for the following reasons:

(…)

d) when the parents, by act or omission, or because of an obvious disability due to mental illness put at grave risk the safety, health, training, education or development of the minor;

(…).

2. As part of the review of the situations listed in the preceding paragraph, the court must consider first the rights and interests of the minor.

(…)

5. The judicial placement of a minor can be requested by the public prosecutor, the social security center in the minor area of ​​residence, the person to whom the child was entrusted administratively, the director of the public institution or direction the private host institution.

(…) ”

Article 1978-A
effect (…) the extent (…) investment in a person selected for adoption or in an institution for the adoption

“Once (…) that the measure promotion and protection with investment in a person selected for adoption or in an institution for the adoption has been ordered, the parents are deprived of their parental authority. ”

2. The law on the protection of children and young people at risk

59. At the material time, the LPCJP, governed by Law 147/99 of 1 st September 1999 in the version following the Law 31/2003 of 22 August 2003, established the regime and the promotion procedure for the rights and protection children and youth at risk ( processo de Promoção of direitos e proteção das crianças e jovens em perigo ).

60. According to this law, he meant by “child” a person under the age of 18 and “young” a person aged under 21 who requested the continuation of the intervention that was implemented before age 18 (Article 5 a)). Measures to promote rights and child protection were adopted by child protection committees or youth at risk or the courts (Article 5 e)). They aimed to remove children and young people to the danger they faced, to provide conditions for them to access their security, health care, education or training, promoting their development and allow them to physical and psychological rehabilitation in relation to any form of abuse or exploitation (Article 34).

61. The relevant parties in this case that Act read as follows:

Article 9
Agreement

“1. The intervention of commissions to protect children and young people ( comissões of proteção das crianças e jovens ) require the explicit agreement of the parents, legal guardian or person having custody of fact, the case.

(…) ”

Article 35
Measures

“1. The promotion and protection measures are:

a) support for parents;

b) support to another family member;

c) placement in a person with a good reputation ( Idónea );

d) support for autonomy ( apoio para a vida autonomia );

e) foster care;

f) institutional care;

g) placement with a person selected for adoption or in an institution for adoption.

2. The promotion and protection measures are implemented, depending on their nature, open ( meio natural de vida ) or investment plan and may be decided provisionally.

(…) ”

Article 38
Application jurisdiction measures to promote
and protect

“The application of measures to promote the rights and protection of the exclusive jurisdiction of protection commissions and courts; (…) ”

Article 38-A
Placement in a person selected for adoption or in an institution for the adoption

“The measure of placement in a person selected for adoption or in an institution for the adoption, applicable when one of the situations specified in Article 1978 of the Civil Code is verified, consists of:

a) placement of the child or young person under the care of a candidate selected to the adoption by the competent social security body; or

b) placing the child or young person under the care of an institution for adoption. ”

Article 39
Support for parents

“The parent support measure is to provide for the child or young psychoeducational and social support and, if necessary, financial assistance. ”

Article 41
parenting

“1. When the measure provided for in Article 39 is applied (…), parents (…) can benefit from a training program aimed at improving parenting duties.

(…) ”

Article 45
Support for autonomy

“1. The autonomy support measure is to bring directly to the young age of 15 years financial and psycho-social support and, in particular through training programs, to offer him terms that will enable to live alone and to gradually acquire a life of autonomy.

(…). ”

Article 49
institution Home Concept

“1. The welcome in institutions is a measure of placing the child or youth in a structure with facilities or a permanent host, and a team of workers that can guarantee [ the child or young] care consistent with their needs and bring [to it] conditions that promote their education, well-being and full development.

(…) ”

Article 55
Promotion and Protection Agreement

“1. The promotion and protection agreement must include:

a) identifying the member protection commission or the [social worker] responsible for managing the project;

b) the period for which it is established and where it needs to be revised;

c) the declarations of consent or no objection necessary.

2. Shall not be established clauses impose undue obligations or imposing limitations to the operation of family life beyond the necessary steps to effectively rule out the danger factors. ”

Article 56
Promotion and Protection Agreement on measures in open

“1. The following shall in particular be included in the promotion and protection agreement establishing the measures to be implemented in an open environment:

a) feeding, hygiene and health care and comfort to provide the child or young by parents (…);

b) identification of the person responsible for the child or youth for the period during which it can not or should not be in the company or under the supervision of parents or the person to whom it was given;

c) school planning, vocational training, work and free time occupation;

d) the planning of health care, including medical consultations and child guidance, and the commitment to comply with the established guidelines and guidance;

e) financial assistance to be awarded, its terms and duration, as well as the entity responsible for its issue and the associated conditions.

(…) ”

Article 62-A
placement measurement in a person selected for adoption
or in an institution for the adoption

“1. The measure of placement in a person selected for adoption or in an institution for the adoption lasts until the adoption is granted and is not subject to review.

2. (…) the natural family does not have the access.

(…) ”

Article 85
Hearing of the holders of parental authority

“The parents, the legal representative and persons with de facto custody of the child or young person is compulsorily heard on the situation which led to the introduction and implementation, revision or termination, of the promotion and protection. ”

Article 100
Procedure

“The judicial process of promoting the rights and protection of children and young people in danger, now designated as judicial proceedings promotion and protection, is the voluntary jurisdiction. ”

Article 103
Lawyer

“1. The parents, legal representative or the person having de facto custody of the child or young person may at any stage of the proceedings, to counsel or request the appointment of a lawyer for representation or that of the child or youth.

2. A lawyer must be appointed to represent the child or young when the interests [of it] and those of his parents are conflicting and, also, when the child or young person who seeks the sufficient maturity with the court.

(…)

4. At the hearing ( debate judicial ) recourse to a lawyer or the appointment of a lawyer is required to assist the child or youth. ”

With the entry into force, scheduled for 8 December 2015, of the law 142/2015 of 8 September 2015, paragraph 4 of Article 103 shall read as follows:

“4. At the hearing, recourse to a lawyer or the appointment of counsel to assist parents is mandatory in cases concerning the extent provided in paragraph g) of paragraph 1 of Article 35, and is mandatory in all cases to assist the child or youth. ”

Article 104
Contradictory

“1. The child or youth, his parents, his legal representative or any person having de facto custody have the right to request the pleadings ( diligencias ) and produce evidence.

2. Written comments may be submitted during the hearing and the adversarial guaranteed.

3. The contradiction regarding the facts and the applicable measurement is always guaranteed in all phases of the proceedings, including during the conciliation aims to reach an agreement, and as part of the hearing where as provided in paragraph g) of paragraph 1 of Article 35 is applicable. ”

Article 106
Phases of the procedure

“1. The legal process of promotion and protection includes the instruction phase, hearing, decision and execution of the measure.

(…) ”

Article 110
instruction Closure

“After hearing the public prosecutor, the court declares the instruction and close:

(…)

c) it clearly appears unlikely to reach a conciliation, he ordered the continuation of the procedure for a hearing and proceed to notifications pursuant to Article 114 § 1. ”

Article 112
negotiated Decision ( Decisão negociada )

“The judge summons to the hearing ( conferência ), for the purpose of obtaining a promotion and protection agreement, the Public Prosecutor, the parents, the legal representative or the person who has de facto custody [of the minor ], the child or young person aged over 12 years, and persons and representatives of entities that it believes the presence and consent to the relevant agreement. ”

Article 114
Hearing ( debate judicial)

“1. If it has not been possible to achieve promotion and protection agreement (…), the judge makes a notification to the Public Prosecutor, the parents, the legal representative or the person who guard [the minor], the child or young person aged over 12 years so that interested parties present in writing, within ten days their comments if they wish and (…) their means evidence.

2. The public prosecutor shall submit written comments and evidence if it considers the measure to be applied is that set out in paragraph g) of paragraph 1 of Article 35.

3. After receiving comments and evidence, the judge will set a hearing date and ordered that notification is made to appear to people.

4. With the notification of the hearing date is made available to parents, legal guardian or person having custody of [the minor] the prosecution submissions and knowledge of it and the memories the evidence requested. ”

3. The Code of Civil Procedure

62. Article 1409 of the Civil Procedure Code, in force at the time, had the relevant parts in this case:

“(…)

4. In voluntary jurisdiction procedures, representation by a lawyer is not mandatory in the appeal phase. ”

IN LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

63. Relying on Articles 6 § 1, 8 and 13 of the Convention, the applicant complained of an infringement of her right to respect for family life due to the application of a placement order for the adoption to respect of his seven younger children and the ban for it to have access to them from the court judgment to the Lisbon family Affairs Northeast – Sintra on 25 May 2012. on that point, it states that introduced, unsuccessfully, various applications and appeals. It also complains that the courts based their decisions on the fact that it had not met its commitments to adequate family planning.

64. The Government rejected the applicant’s argument.

65. Mistress of the legal characterization of the facts of the case, the Court considers it appropriate to consider the complaints raised by the applicant in terms of the single article 8 of the Convention, which requires that the decision-making process leading to measures of interference is fair and respects, as it should be, the interests protected by that provision ( Kutzner v. Germany , n o 46544/99 , § 56, ECHR 2002 – I, . Kříž v Czech Republic . (Dec.) n o 26634/03 , 29 November 2005, and Pontes v. Portugal , n o 19554/09 , § 67, 10 April 2012).

Article 8 of the Convention provides in relevant part in this case:

“1. Everyone has the right to respect for his life (…) family (…).

2. There can be no interference by a public authority with the exercise of this right except such as this interference is provided for by law and is a measure in a democratic society, is necessary (.. .) for the protection of health or morals, or the protection of the rights and freedoms of others. ”

A. Admissibility

1. Arguments of the parties

66. The Government raised a plea of ​​premature nature of the application on the ground that the applicant submitted after the judgment of the Supreme Court of 28 May 2015, an appeal to the Constitutional Court which is still pending. He believes that if the Constitutional Court granted the applicant’s request on the various normative unconstitutionality allegations raised by it in its appeal in memory, the case will be sent back to trial and that therefore the Supreme Court is not yet final.

67. The applicant argues that the appeal of unconstitutionality before the Constitutional Court can not be seen as an effective remedy to exercise under Article 35 § 1 of the Convention. She claims to have submitted his appeal to the Constitutional Court to prevent the investment decision of their children for adoption becomes final. In addition, indicating that there is the Constitutional Court no recourse against violations of fundamental rights equivalent appeal by amparo , it argues that this court can not rule on the character consistent with the Constitution of a standard or its interpretation by a lower court and can not therefore rule on the merits of a case has already been decided by the Supreme Court. It adds that even if the Constitutional Court gives a favorable response to its appeal, this court is not bound to order a referral of the case for a new decision on the merits. Finally, the applicant states that the withdrawal of his children was implemented June 8, 2012, that the violation denounced by it is already effective and that, therefore, the request is not premature.

2. Findings of the Court

68. The Court recalls that Article 35 § 1 of the Convention, it may not matter after the exhaustion of domestic remedies. Every applicant must have given the domestic courts the opportunity that this provision was intended to be afforded to Contracting States in principle: prevent or redress the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Moreira Barbosa v. Portugal (dec.), n o 65681/01 , ECHR 2004-V, and Cardot v. France , 19 March 1991, § 36, series A n o 200). This rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that the domestic system provides an effective remedy in respect of the alleged violation (see, for example, Selmouni v. France [GC], n o 25803/94 , § 74, ECHR 1999-V).

69. The Court further recalls that Article 35 of the Convention provides that only the exhaustion of remedies both related to the breaches alleged available and sufficient. These remedies should exist in a sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many others, Vernillo v. France , 20 February 1991 , § 27, series A n o 198, Dalia v. France , 19 February 1998, § 38, Reports of judgments and decisions 1998 – I, and . Vučković and others v Serbia (preliminary objection) [GC], no bones 17153 / 11 and 29, § 71, 25 my rs 2014).

70. The Court must apply the rule of exhaustion of domestic remedies, taking due account of the context: the safeguard of human rights that the Contracting Parties have agreed to set. It has recognized that Article 35 § 1 of the Convention must be applied with flexibility and without excessive formalism. It has further recognized that the rule does not accommodate an automatic application and is not an absolute one; to monitor compliance, it is essential to have regard to the circumstances of the case. This means that the Court must take realistic account not only of the remedies provided in theory in the legal system of the Contracting Party concerned but also of the general context in which they operate, as well as the applicant’s personal situation ( Akdivar and others v. Turkey, 16 September 1996, § 69, Reports 1996 – IV).

71. The answer to the question of whether the individual complaint to the constitutional court is required under Article 35 § 1 of the Convention depends largely on the peculiarities of the legal system of the respondent State and the extent of skills of its constitutional jurisdiction. Thus, in a state where these skills are limited to a review of the constitutionality and the level of compatibility of legal norms, an appeal to the Constitutional Court is to exercise that where the applicant challenges a law or regulation as in itself contrary to the Convention ( Grišankova and Grišankovs v. Latvia (dec), n. o 36117/02 , ECHR 2003 – II). However, this remedy is not effective when the applicant complains that an error in the interpretation or application of a law or regulation which in itself is not unconstitutional ( Szott Medyńska-c . Poland (dec.), n o 47414/99 , 9 October 2003, and Smirnov v. Russia (dec.), n o 14085/04 , ECHR, 6 July 2006).

72. Turning to the present case, the Court first notes that it is undisputed that the constitutional complaint in Portugal shall relate to one “normative” provision and not a judicial decision ( Colaço Mestre and SIC – Sociedade Independente de Comunicação SA c. Portugal (dec.), No bone 11182/03 and 11319/03 , 18 October 2005).

73. It then observes that the applicant raised before the Constitutional Court several pleas of unconstitutionality of the interpretation given by the courts of certain provisions of LPCJP (paragraph 51 above) to denounce the disproportionate nature in his eyes the institutionalization of best of its children for adoption. Since this part of the constitutional complaint concerns the judicial decision itself and not on a normative unconstitutionality, it appears doomed.

74. As regards the plea alleging an illegal character in the Constitution of the absence of legal representation obligation, before the courts of first instance, parents of a child subject to a protection proceedings, the Court considers that it can not speculate on the admissibility and the potential outcome of this part of the appeal. Moreover, even assuming that the applicant obtains a favorable decision and that the case be sent back to trial, he must still submit his complaints of potential harm resulting from the contested measure, within the framework a civil action against the State for the purpose of obtaining compensation. Moreover, the Court considers that it can not require the applicant to wait longer that the Constitutional Court’s decision, since the protective measure was executed on 8 June 2012, there is more three years already (see, mutatis mutandis , Guillemin v. France , 21 February 1997, § 50, Series 1997 – I).

75. In view of the foregoing, the Court considers it appropriate to reject the Government’s objection.

3. Conclusion

76. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and it also faces any other ground of inadmissibility, the Court declares it admissible.

B. Merits

1. Arguments of the parties

a) The applicant

77. The applicant alleges that the measure of placement for adoption, applied in respect of seven of his children and performed with regard to six of them, constituted a disproportionate interference with his right to respect for family life. Contesting the facts considered proven by the domestic courts, she argues that her children were exposed to any physical or psychological violence and that their placement was based solely on his social precarious situations. She complains about the application of different measures vis-à-vis her children and says not understand why the support measure for parents has been applied in respect of her daughter I. whereas the road to adoption , harder in his eyes, was chosen for its youngest children.

78. Complaining that less drastic measures with regard to its youngest children were not considered, the applicant claims not to have received adequate social assistance from social services before the institutionalization of its children for adoption. It refers, as evidence, to the various reports on which the domestic courts have relied and believes they show that social services were deaf to her distress and she continued to struggle alone to provide for his family. She denies having ceased to work with social services, stating that it has received no visits from them the year before the application of the investment measure.

79. The applicant also complained of being pushed to agree to include in the agreement with the social services a clause under which it undertook to undergo sterilization operation while it believes such a move went against his culture and his Muslim religion. She says she accepted the inclusion of this clause because of her emotional state – in her brittle – at the material and to stop the relentless social services to which it was confronted. She is convinced that the withdrawal of his children was decided to punish her for not having been sterilized and have even given birth to four children. It states that it appears from the judgment of the Family Court in which it had stressed that it was ultimately not sterilized despite its commitment to undergo such an operation.

80. Next, the applicant criticizes the forfeiture of parental authority and the prohibition of contact with and between his children in three different foster homes under the judgment of the Family Court. Indicating that the decision was not yet final and that the courts had recognized the absence of physical violence and the existence of emotional ties with her children, she argues that these restrictions have made it for additional punishment and that the ‘were removed from her children. In the alternative, she complained of not having received any response from the authorities about the various requests made by it to have access to her children. She indicated that her youngest was six months old when he was removed and the immediate implementation of the measure and the absolute prohibition of contact were thus prevented the establishment of any link with it. She complains of not being able to see her children since the indication of provisional measures by the Court, ordered under Rule 39. It adds, in the alternative, as reports show that children responded enthusiastically to restoring contact with her.

81. At the procedural level, the applicant complains of not being able to participate effectively in the proceedings.

First, it states that it was represented by counsel until May 25, 2012, the judgment of the Family Court, and it was not before, and that in despite it believes the complexity of the procedure and the severity of its issues. It believes that it has therefore not been able to defend its interests, since it would have been possible to present its case, and the court did not allow effective participation in since the procedure would not have told her what was happening. On this point, she alleges, for example she could not attend the hearing various witnesses during the judicial debate on 16 May 2012.

Then she complained that the prosecution’s charges were not brought to its notice, which would not have allowed him to understand the stakes in the proceedings and, in particular, the investment demand from children for adoption envisaged in the court order of January 26, 2012. in addition, it alleges that the family court to have applied the placement order against her seven younger children, namely M. Y, R, L., S., A. and R. whereas this measure had, she said, was requested by the prosecution vis-à-vis the last five.

Finally, the appellant criticizes the Family Court having relied solely on the reports of social services and to have ordered no expertise enabling it to assess its ability to exercise their parenting and assess the maturity and affective and emotional balance of his children. It further alleges that the evidence it submitted in support of its appeal before the court of appeal were not considered, that court, as the Supreme Court, being limited his statements to confirm the judgment of the family court without a critical examination of the facts. She claims to have suffered the procedure without ever having been able to bring any evidence in his defense.

82. Furthermore, the applicant requests the Court to order the continued visits to his children and between them.

b) The Government

83. The Government recognizes that the placement of children of the applicant institution for adoption was an interference with the right of the latter to respect for family life. It is, however, that the interference was justified having regard to the best interests of children on the grounds that they were in danger because of negligence on the applicant and her husband, and that the situation would have known no improvement despite the application of a measure of support to parents for several years.

84. As regards the necessity of the measure, the Government maintained that the father was absent from the home and that the applicant had shown great neglect of her children. He said that the family had followed since 2005 by social services and a more sustained since the agreement with the applicant in 2007, which led to the application of a support measure against relatives children. He added that this has brought social services to perform close monitoring of the family including through meetings and visits at home and at school. It states that, from 2010, the applicant ceased to cooperate with social services and has made it impossible to apply the measure of current assistance. He says the child institutionalization was then considered as a solution for the younger children and that this measure was applied only after other measures failed. He says, to base its judgment, the Family Court took into account the competing interests at stake and that it relied on the testimony of Social Workers, the applicant and spouse and the eldest daughter of torque, and the different social relations. It specifies that these reports had helped raise the following: a lack of health and safety at the family home; lack of medical care for children; a truancy of children; food and clothing deficiencies; administrative negligence, for example the lack of registration of one of the daughters of the applicant in the register of civil status and the irregular situation of the applicant in the country.

The Government also states that the applicant had not designated a person of the family circle may constitute a support for the family.

85. As regards the sterilization operation, the Government maintained that the applicant had deliberately engaged in 2009 to do such an operation within the framework of the promotion and protection agreement. He added that the aim was only to allow monitoring of a family planning program by the applicant and not to force it to a specific contraceptive method. In addition, it states that the courts had not taken this into account in their decision and that it therefore had no influence in the procedure: in this regard, he said that the Family Court noted in its judgment the lack of monitoring of family planning and not a specific method of contraception.

86. The Government concluded that the measure was appropriate, proportionate, and therefore necessary in a democratic society, and therefore did not violate Article 8 § 2 of the Convention. He believes it also notes the national margin of appreciation, as the authorities are better placed to determine the solution to be applied in relation to a concrete situation and that, consequently, the Court can not revisit the facts were considered as internally.

87. As regards the impossibility for the applicant to have access to her children, the Government explains that this follows from the very measure of placement for adoption, pursuant to Article 1978-A the civil code and Article 62-A of LPCJ.

2. Findings of the Court

a) General principles

88. The Court recalls that, for a parent and child of each constitutes a fundamental element of family life ( Kutzner , cited above, § 58): domestic measures hindering such constitute interference with the right protected by the Article 8 of the Convention ( K. and T. v. Finland [GC], n o 25702/94 , § 151, ECHR 2001-VII). Such interference breaches the aforementioned Article 8 unless it is “prescribed by law”, pursues one or more legitimate aims under the second paragraph of that provision and was “necessary in a democratic society” for the ( Gnahoré c. France , n o 40031/98 , § 50, ECHR 2000 IX, and Pontes , cited above, § 74). The notion of “necessity” implies that the interference on a pressing social need and, in particular, proportionate to the legitimate aim ( Couillard Maugery v. France , n o 64796/01 , § 237, 1 st July 2004). In assessing the “necessity” of the measure “in a democratic society” and therefore should be analyzed in the light of the whole case, the reasons adduced in support of it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.

89. The fact that a child could be placed in a more beneficial environment for his education can not in itself justify the strength of removal from the care of their biological parents; such an interference with the right of parents, under Article 8 of the Convention to enjoy a family life with their child still has to be “necessary” due to other circumstances ( K. and T. , supra , § 173, and Kutzner , cited above, § 69). Moreover, Article 8 of the Convention imposes on the state of positive obligations inherent in effective “respect” for family life. Thus, where the existence of a family relationship is established, the State must in principle act to enable that tie to be developed and take measures to meet the parent and the child concerned ( Kutzner , cited above, § 61).

90. In consideration of the necessity of the interference, the Court will take into account that the design that has been the timeliness of intervention by public authorities in the care of a child varies from State to another depending on factors such as traditions relating to the role of the family and state intervention in family affairs, as well as the resources that can be devoted to measures public in this particular field. Still, the best interests of the child in each case takes decisive. We must also not lose sight of that national authorities benefit of direct contact with all concerned ( Olsson v. Sweden (n o 2) , 27 November 1992, § 90, Series A n o 250), often at the when investment measures are envisaged or immediately after their implementation. It follows from these considerations that the Court is not its task to replace the domestic authorities in the exercise of their regulatory responsibilities in matters of child care by the public authority and the rights of parents whose children were well placed, but to control the angle of the Convention the decisions they delivered in the exercise of their discretion ( Hokkanen v. Finland , 23 September 1994, § 55, series A n o 299 – A, Johansen v. Norway , 7 August 1996, § 64, Reports 1996 – III, and K. and T. , cited above, § 154).

91. The Court also recalls that although the border between the positive obligations and negative obligations of the State under Article 8 of the Convention does not lend itself to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, regard must be had to the fair balance between the competing interests – those of the child, those of the parents and those of public order ( . Maumousseau and Washington v France , n o 39388 / 05 , § 62, ECHR 2007-XIII) – taking into account, however, that the child’s best interests must be the paramount consideration (see, to that effect, Gnahoré , cited above, § 59) which, according to its nature and seriousness, override those of the parents ( Sahin v. Germany [GC], n o 30943/96 , § 66, ECHR 2003 – VIII). In addition, a family breakup is a very serious interference; a measure leading to this situation should therefore be based on considerations inspired by the interests of the child and of a weight and a sufficient strength ( Scozzari and Giunta v. Italy [GC], no bones 39221/98 and 41963 / 98 , § 148, ECHR 2000-VIII). The remoteness of the family context child is an extreme measure to which one should be used as a last resort. For a measure of this type is justified, it must meet in order to protect the child faces an immediate danger ( Neulinger and Shuruk v. Switzerland [GC], n o 41615/07 , § 136, ECHR 2010).

92. It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with these positive obligations under Article 8 of the Convention and the Court whether, in application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, taking particular account of the best interests of the child (see, mutatis mutandis , Neulinger and Shuruk , § 141, ECHR 2010, and KAB v. Spain , n o 59819/08 , § 115, April 10, 2012,).

93. The Court reiterates that, if the authorities have considerable latitude to assess in particular the need to take charge of a child, it must nevertheless be satisfied that in the case in question, there were circumstances warranting the removal of the child. It is incumbent on the respondent State to establish that the authorities before putting such measures into effect, carefully assessed the impact that would have on the parents and the child measuring envisaged adoption and other solutions that child care ( K. and T. , supra, § 166, and Kutzner , cited above, § 67). The Court also exerts tighter control on additional restrictions, such as those made ​​by the authorities of the parents visiting rights, and safeguards to ensure the effective protection of the rights of parents and children to respect for their family life . Such further limitations entail the danger that the family relations between the parents and a young child ( Gnahoré , § 54, and Sahin , cited above, § 65). On one hand, it is certain that guarantee children a development in a healthy environment responsibility of the child’s interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to health and development of children ( Sahin , cited above, § 66). On the other hand, it is clear that it is as much in the child’s interest that the relationship between he and his family are kept, except in cases where it was particularly indignant: break link back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , § 59, and Pontes , cited above, § 85).

94. If Article 8 of the Convention contains no explicit procedural requirements, the decision process related to measures of interference must be fair and proper to respect the interests protected by that provision. It should therefore be determined, depending on the circumstances of each case including the seriousness of the action, if the parents have been involved in the decision process, as a whole, a fairly important role to give the required protection in their interests. If not, there is a failure to respect their family life and the interference resulting from the decision can not “necessary” under Article 8 ( W. v. United Kingdom , 8 July 1987 § 64, series A n o 121, and Assunção Chaves v. Portugal , n o 61226/08 , §§ 82-84, 31 January 2012).

b) Application of these principles in the present case

95. In the present case, the Court notes that the parties do not dispute that the contested measure investment – orders against seven of his children, M., Y., IR, L., MS, and A. R., and executed from the last six – the loss of parental authority and the prohibition of any visit, decided by the judgment of the family court of Lisbon Northeast – Sintra on 25 May 2012 constituted “interferences” in the exercise of the right of the applicant to respect for his family life. The Court sees no reason to conclude otherwise.

96. The Court further observes that the parties agree that the interference in question had a legal basis. It also notes that the above measures at issue were based on Article 35 § 1 g) of the LPCJP and Article 1978-A of the Civil Code, and were therefore “prescribed by law”.

97. It appears from the reasons given by the domestic courts that the decisions to which the applicant had the objective of safeguarding the interests of children. The interference in question therefore pursued a legitimate aim under Article 8 § 2 of the Convention: “the protection of rights and freedoms of others.” The question is therefore whether the measures were “necessary in a democratic society” to achieve the legitimate aim in the particular circumstances of the case; more specifically, it is whether the application made in this case the legislation struck a fair balance between the best interests of the child and other competing interests.

i. preliminary observations

98. As a preliminary point, the Court notes the concluding observations and recommendations presented by the Committee of the UN Rights of the Child adopted 31 January 2014 concerning the situation of families living in persistent poverty in Portugal (see comments and recommendations n os 39-42 and 57-58 times in paragraph 57 above).

99. Next, in the present case, it notes the following.

First, the family of the applicant was the subject of a first report of the CPCJ in 2005, since the applicant was unemployed and his spouse, the children’s father, was often away from home because his polygamy.

Subsequently, a rights promotion agreement and child protection between the applicant, spouse and CPCJ was established January 4, 2007 pursuant to section 55 of the LPCJP concerning E. (then aged 11 years), I. (then aged 5), M. (then aged 2), Y. (then aged 1 year) and IR (then aged three months). Under the agreement, the applicant was engaged, among others, to seek employment, to improve the living conditions in its housing and to ensure to allow his children to go to school and, where appropriate, from attending kindergartens or nurseries. Also according to the agreement, CPCJ was committed, for its part, to monitor and support the implementation of the Agreement through recommendations, suggestions and proposals (see paragraph 9 above).

The promotion procedure for the rights and protection of children at risk was officially opened on 26 September 2007, at the request of the CPCJ who was brought to the attention of the prosecutor at the court in Sintra family affairs lack of cooperation from applicant as part of the agreement, including the lack of adequate material conditions and neglect. A measure of support to parents against children was then applied on 21 December 2007 in accordance with Article 39 of the LPCJP. It resulted from the support provided to the applicant by a social worker of the ECJ in order to teach it to organize their home and care for her children (paragraphs 15-17 above – above ).

Following a hearing held on June 25 2009 in the presence of the applicant and her husband, additional clauses were added to the protection agreement by which, inter alia, the applicant undertook to rectify the situation in Portugal , to submit a dossier in order to obtain a financial allocation to designate a trusted person in the family or social circle and to undergo a sterilization operation by tubal ligation (see paragraph 18 above).

Finally, between 10 September 2009 and 24 June 2011, the applicant was the subject of several controls ECJ.

100. The Court further notes that the ECJ has sent five reports to the court, including opportunities early pregnancies of two older girls, always precarious and unhealthy housing conditions, a one-time truancy of some children, but also good grades with regard to E. I. and the lack of vaccinations update in respect of M., L., and A. MS, lack of hygiene observed in children as well as the non-compliance the commitment by the applicant to be sterilized.

101. The Court also observes that, in financial terms, the ECJ noted that the applicant was still out of work and she received 393 EUR family allowance, the children’s father had declared a monthly income of 366 EUR and that parents still had not submitted an application to obtain financial assistance.

102. It further notes that in its judgment of 25 May 2012, the Family Court ordered three types of measures: a support measure of autonomy with regard to E. (then aged 17) , a measure of support to the applicant concerning I. (then aged 11) and institutionalization measure to the adoption of Mr. (then 8 years old), Y. (then aged 7 years ), IR (then aged 6 years), and L. MS (then aged 4), A. (then 3 years old) and R. (then aged 7 months).

103. The purpose of the request therefore concerns the measure taken against the seven youngest children of the applicant, confirmed by the Court of Appeal of Lisbon and, ultimately, the Supreme Court of years his judgment of 17 September 2015, and executed from the last six of them (see paragraph 35 above).

ii. The institutionalization of measures of the seven youngest children of the applicant for adoption

α) on the precarious situation of the applicant

104. The Court notes that it was primarily criticized the applicant for not providing adequate material conditions for their children and for neglecting them.

105. The Court reiterates that it is not him substituted er its assessment for that of the competent national authorities on the measures that have been taken since they are in fact better placed to make such an assessment in particular because they are in direct contact with the context of the case and the parties involved ( Reigado Ramos v. Portugal , n o 73229/01 , § 53, 22 November 2005). However, in this case, it considers the outset that it was objectively clear that the situation of the applicant was particularly fragile since it had to bear a large family, in this case ten children, that it amounted to only addition owing to the absence of her husband.

106. Now it appears that the applicant survived with 393 EUR family allowance per month and it ensured the food and clothing for the family by using the food bank and donations from individuals or associations. Despite the obvious material deprivation found in the various home visits to the applicant, the domestic authorities did not try to fill these gaps through additional financial assistance to cover the basic needs of the family (eg in food, electricity and running water) and the hospitality of the younger children in family day care to allow the applicant to exercise a paid job. In reality, it appears that social services in charge of support for the family waiting on the part of the applicant, in addition to the regularization of its situation in the country, the formal presentation of a reasoned record exists needs yet they themselves identified and reported (see paragraphs 23 and 26 above – above). The Court believes that the authorities should take concrete steps to allow children to live with their mother, before placing and open a adoptability procedure. It also recalls that the role of social protection authorities is precisely that of helping those in difficulty, guiding them through the process and advise, among others, about the different types of available social benefits, opportunities to obtain social housing or other means to overcome their difficulties ( Saviny v. Ukraine , n o 39948/06 , § 57, 18 December 2008, and RMS v. Spain n o 28775/12 , § 86, 18 June 2013 ). In the case of vulnerable people, authorities must show special attention and must ensure their greater protection ( B. v. Romania (n o 2) , n o 1285 to 1203 , §§ 86 and 114, February 19 2013 Todorova v. Italy , n o 33932/06 , § 75, 13 January 2009, and Zhou v. Italy , n o 33773/11 , § 58, 21 January 2014).

107. While it is true that in some cases declared inadmissible by the Court, the placement of children was motivated by the unsatisfactory living conditions and material deprivation, it has never been the sole reason as the basis for the decisions of national courts: in addition there were other elements such as psychic conditions of the parents or emotional disability, educational and teaching (see, for example, Rampogna and Murgia v. Italy (dec), n. o 40753 / 98 , May 11, 1999, and MG and MTA v. Italy (dec.), n o 17421/02 , 28 June 2005).

108. In this case, it is clear that at no stage of the procedure were discussed situations of violence or abuse against children (see, a contrario , Dewinne v. Belgium (dec. ), n o 56024/00 , 10 March 2005, and Zakharova v. France (dec.), n o 57306/00 , 13 December 2005) and sexual abuse (see, a contrario , Covezzi and Morselli v. Italy , n o 52763/99 , § 104, 9 May 2003, Clemeno and others v. Italy , n o 19537/03 , § 50, 21 October 2008, and Errico v. Italy , n o 29768/05 , § 48, 24 February 2009 ). The courts have not found emotional neglect (see, conversely, Kutzner , cited above, § 68, and Barelli and Others v. Italy (dec.), N o 15104/04 , 27 April 2010) or a worrying state of health or mental imbalance parents (see, a contrario , Bertrand v. France (dec.), n o 57376/00 , 19 February 2002, and Couillard Maugery , § 261). Rather, it appears that attachment links between the applicant and her children were particularly strong, which the Family Court has also noted in its decision (paragraph 34 above). It does not follow the internal record as expertise of children, at least older, has been initiated.

β) on the commitment made by the applicant under the protection agreement, for sterilization

109. The Court recalls that the dignity and human freedom are the essence of the Convention ( Christine Goodwin v UK. [GC], n o 28957/95 , § 90, ECHR 2002 – VI). In the sphere of medical assistance, the tax treatment without the free, express and informed consent of an adult in full possession of his mental capacity does not comply with the right to physical integrity and, a fortiori , with the Convention ( Glass v UK. , n o 61827/00 , §§ 82 – 83, ECHR 200 – II, and Jehovah’s witnesses of Moscow v. Russia , n o 302/02 , § 135 10 June 2010).

110. The Court emphasizes that sterilization is a major attack on the ability of a person to procreate. As this intervention concerns an essential bodily functions of humans, it affects many aspects of a person’s integrity, including physical and mental well-being and emotional, spiritual and family. It can be practiced legitimately at the request of the person concerned, such as birth control or for therapeutic purposes where the existence of a medical necessity is established convincingly. However, the situation is different where such medical treatment has become an adult and sane patient without his consent. Such a design shall be considered incompatible with respect for the freedom and dignity of man, which is one of the fundamental principles of the Convention ( VC v. Slovakia , n o 18968/07 , §§ 106-107, ECHR 2011 (extracts), and NB v. Slovakia , n o 29518/10 , § 80, 12 June 2012).

111. In the present case, the Court observes that the lack of monitoring of adequate family planning has resulted in worsening the financial situation, already difficult for the applicant. However, it considers that the addition of a commitment to the sterilization interested in the protection agreement established with social services is particularly serious (paragraph 18 above – above). It believes that social services could advise the applicant less intrusive contraceptive methods to respond to the lack of monitoring of family planning they found. Moreover, even assuming that the applicant deliberately accepted this approach, as the Government submitted, the Court noted that the applicant finally refused to undergo the operation in question and that, contrary to what the government refusal has clearly been brought against it by both the family Court by the Court of appeal of Lisbon and the Supreme Court, which accepted the facts established by the first instance (paragraphs 34, 41 and 46 below -above). In addition, the Court wishes to point out as a matter of principle, that the use of a sterilization operation can never be a condition for continued parental rights. Consequently, the failure by the mother of his commitment to submit to such a transaction does not in any way be held against it, even in the case of a voluntary and informed commitment on his part.

iii. On the prohibition of any contact between the applicant and his seven younger children

112. If it is not the task of replacing the domestic authorities to regulate matters of custody and access, it is for the Court to review under the Convention the decisions that they have taken in the exercise of their discretion

113. In the present case, the Court found that the prohibition of any contact between the applicant and her children have been the subject of an investment institution for the adoption was pronounced by the judgment of 25 May 2012 the family court, pursuant to Article 1978-A of the civil code which provides for deprivation of parental authority in connection with any investment measure to adopt regardless concrete situations. It notes that this measure was executed June 8, 2012, when the forced placement of children in institutions, and it lasted until 5 March 2015, the date of the lifting of the ban after the decision by it pursuant to Article 39 of the Rules.

114. The Court reiterates its position that additional restrictions are justified under Article 8 of the Convention that when the family was particularly indignant vis-à-vis the child. Or, as it has already raised previously (see paragraph 108 below – above), this was not the case in the present case. Despite the lack of evidence of violence or abuse vis-à-vis her children, the applicant was deprived of any access, while they had between seven months and 10 years and that his appeal against the judgment of the family court was pending. The Court further observes that the six children were actually placed in three different institutions, making difficult to maintain fraternal ties. This measure has caused not only the family breakdown, but also siblings, and went against the best interests of children ( Pontes , cited above, § 98).

iv. On decision making

115. The Court observes that, to justify their decisions the domestic courts are essentially based on the reports of the CCPCJ and the ECJ that accompanied the applicant in previous years. It notes that no psychological evaluation by an independent expert was ordered to assess the maturity and educational and teaching skills of the applicant ( Saviny , cited above, § 58) and a psychological evaluation of children did not longer considered necessary as it appears that the eldest daughters of the applicant ensured a crucial educational role with their cadets, to constitute for them referees. It notes that the Court of Appeal of Lisbon has not given the information that the applicant has submitted in support of his application to show that she had looked for solutions to its problems after being removed his children (see paragraph 41 above). The Court also notes that, in the review of the case on 27 March 2014 the panel of three judges of the Court of Appeal of Lisbon confirmed word for word the previous decision of the single judge by the copy-process paste, which is not an actual review of the situation (see paragraph 42 above).

116. As to the alleged lack of notification of the prosecutor’s submissions as part of the protection process, the Court considers that, since it has no direct knowledge of the case file, it n is not able to decide whether the applicant received or not reporting them. However, it finds that the applicant was not represented by a lawyer in proceedings before the Family Court, which was also not compulsory at the relevant time (it has been since the entry into force of law 142/2015 of 8 September 2015 amending Article 103 of the LPCJP), except in the appeal. As she has said in the judgment Assunção Chaves (cited above, § 82), given the complexity and the issue of child protection proceedings in danger and extremely serious and delicate consequences thereof this both for the child and parents concerned, the Court considers that precautions and additional procedures have been taken to ensure not only of understanding by the applicant of the exact stake in the proceedings, but also effective participation in the latter. The Court notes that the applicant has participated only once in a hearing, namely before the Family Court (paragraph 33 above) for his hearing before that court.

117. In the alternative, the Court notes that, since it is represented by a lawyer – that is to say from the judgment of the Family Court of May 25, 2012 – the applicant took his case to the highest courts, introducing appeals and making repeated requests for access to his children. This act supported procedural ivity contrast to that prevailing in the proceedings before the Family Court, during which the applicant was not represented by a lawyer.

α) Conclusions

118. Notwithstanding the margin of appreciation enjoyed by the respondent State in the present case, the Court does not consider that the institutionalization of measures for their adoption, imposed on seven of his children, Mr. , Y, R, L., S., A. and R., and executed from the last six, to the extent that it deprived the applicant of her parental rights in respect of his children and contacts with them, causing the rupture of the biological family relationship was relevant and adequate in relation to the legitimate aim pursued and therefore necessary in a democratic society. To arrive at this conclusion the Court has had particular regard to the above considerations, namely, the absence of violence or abuse physical (compare R. and H. v. United Kingdom , n o 35348/06 , § 85, 31 May 2011), sexual or psychological against children, the existence of strong emotional bonds with them, the lack of response from social services to the physical distress of the applicant s mother a large family, exercising his almost single parenting. It also notes that the courts had not properly considered the cultural differences in the context of the proceedings in question and raises the pressure on it for submission to a sterilization operation under the procedure protection of minors.

119. Since the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time came, “reconstitute” the family ( Gnahoré , cited above, § 59), the Court considers that the measures adopted by the placement of children in courts of the applicant for adoption, depriving her of her parental rights, have spared a balance the interests at stake in the domestic proceedings ( R. and H. , supra, § 72). It does not appear, moreover, that the courts have considered other less restrictive measures, including foster care and institutional care, established by Article 35 § 1 e) and f) of the Law the protection of children and youth at risk (see paragraph 61 above).

120. In conclusion, on the basis of the foregoing, the Court finds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L. , MS, A. and R. for their adoption (paragraphs 104-107).

121. In addition, there has been a violation of Article 8 of the Convention that the decision of placing children in an institution for adoption took account of the failure by the applicant to its commitment to undergo sterilization by tubal ligation (paragraphs 109-111).

122. The Court also considers that there has been interference with the right of the applicant to respect for his family life due to the prohibition of any contact between her and her children. There has therefore been a violation of Article 8 of the Convention in this regard (paragraphs 112-114).

123. Finally, there has been a violation of Article 8 of the Convention because the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant (paragraphs 115-117).

III. APPLICATION OF ARTICLE 39 OF THE RULES OF COURT

124. The Court recalls that according to Article 44 § 2 of the Convention, this judgment will become final a) when the parties declare that they do not require the transfer of the case to the Grand Chamber; or b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c) when the panel of the Grand Chamber rejects the request to refer under Article 43 of the Convention.

125. The Court considers that the measures it has indicated to the Government pursuant to Article 39 of Regulation (paragraphs 53-56 above) should remain in force until the present judgment becomes final or that it makes a further decision in this regard. After the final judgment, the applicant may, if necessary and if desired, make a new application for interim measures under Article 39 of the Rules of Court.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

126. Under Article 41 of the Convention,

“If the Court finds that there has been violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation consequences of this violation, the Court awards the part injured, if necessary, just satisfaction. ”

127. The applicant claimed 150,000 euros (EUR) for pecuniary damage.

128. The Government left to the discretion of the Court.

129. Given the circumstances of the case and the four findings of violations of Article 8 of the Convention contained in paragraphs 120, 121, 122 and 123, the Court considers that the applicant suffered non-pecuniary damage. Given all the evidence before it and equitable basis, as required by Article 41 of the Convention, the Court considers it appropriate to award the applicant EUR 15 000 for non-pecuniary damage .

130. Under the particular circumstances of this case and the urgent need to end the violation of the right of the applicant to respect for his family life, the Court invited the national authorities to review, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children (see, mutatis mutandis , Bondavalli v. Italy , n o 35532/12 , §§ 83 and 91, November 17, 2015, and RMS, § 101).

B. Costs and expenses

131. The applicant made no application for costs and expenses. The Court considers that there is therefore no need to grant it to award under this head.

Default interest

132. The Court considers it appropriate to base the default interest rate on the interest rate on the marginal lending rate of the European Central Bank plus three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Decides to continue to indicate to the Government, pursuant to Article 39 of the Rules, it is desirable in the interests of the proper conduct of the proceedings, to take appropriate measures to ensure the right of visit the applicant to his children having been an institutionalization for their adoption until the present judgment becomes final or she makes another decision in this regard;

3. Holds that there has been a violation of Article 8 of the Convention on account of the investment decision institution M., Y., IR, L., S., A. and R. for their adoption ;

4. Holds that there has been a violation of Article 8 of the Convention on account of the fact that children’s placement decision in an institution for adoption took account of the failure by the applicant of its commitment to submit to sterilization by tubal ligation;

5. Holds that there has been a violation of Article 8 of the Convention on account of the ban on contact between the applicant and her children M., Y, R, L, MS, R and A. . June 8, 2012 to March 5, 2015;

6. Holds that there has been a violation of Article 8 of the Convention due to the lack of effective involvement of the applicant in the decision making process that resulted in six of institutionalization of children for their adoption ;

7. Holds that local authorities will reconsider, within a short time, the situation of the applicant and her children M., Y, R, L, MS, A. R. and in the light of this judgment and take appropriate action in the best interests of children;

8. Holds

a) that the respondent State is to pay the applicant, within three months from the day the judgment becomes final in accordance with Article 44 § 2 of the Convention, 15 000 EUR (fifteen thousand euros), plus any tax that may be chargeable to tax for non-pecuniary damage;

b) that from the expiry of that period until settlement, this amount will increase to simple interest at a rate equal to the marginal lending rate of the European Central Bank during the period, plus three percentage points;

9. Rejects the claim for just satisfaction to the remainder.

Done in French, and notified by 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-PassosAndrás Sajó
GreffièrePrésident

At this stop is attached, in accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court of the separate opinion of Judge A. Sajó.

AS
EFF

CONCURRING OPINION OF JUDGE SAJÓ

I fully agree with the judgment. I think it is important to emphasize that the best interests of the child is – except in exceptional cases – to be with her parents. The 1989 Convention on Children’s Rights provides in Article 3 § 1, that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. A primary consideration does not exclude the existence of other considerations and in the presence of a Convention right, we must strive to harmonize different interests. However, it is important to emphasize that the best interests of the child is not in principle opposed to the fundamental right of parents to live a family life with their children. The rule of the best interests of the child shall be construed as a rule excluding the fundamental rights of parents. Moreover, we find this consideration in Article 9 § 1 of the Convention on children’s rights:

“States Parties shall ensure that the child is not separated from their parents against their will, except when competent authorities determine, […], that such separation is necessary for the best interests of the child. ”

Similarly, the Court has recognized that it is as much in the child’s interest and in that of his parents that the relationship between he and his family are kept, except in cases where the latter has shown particularly unworthy: break those links back to cut the child from its roots. The result is that the child’s interest requires that only the circumstances are quite exceptional can lead to a breakdown of family ties, and that everything is done to maintain personal relationships and, where applicable, the time v enu, “reconstitute” the family ( Gnahoré v. France , n o 40031/98 , § 59, ECHR 2000 – IX).

According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family (see, mutatis mutandis , Kroon and others v. the Netherlands , 27 October 1994, series A n o 297-C, § 32, and Wagner and JMWL v. Luxembourg , n o 76240/01 , 28 June 2007). For parent and child of each constitutes a fundamental element of family life. Moreover, if the Court finds a measure concerning interference with the exercise of rights protected by the Convention is “necessary in a democratic society” requires that the reasons given for the measure in question is relevant (and sufficient ).

Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).

Originally the unilateral and absolutist understanding of the concept of the child’s interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child’s interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by “saviors”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.

The court unanimously found violation of the mother’s Article 8 rights and awarded her 32,000 Euros in compensation.

The Facts

The mother, had 3 children, born in 2005, 2006 and 2008. She had depression and was taking medication. On 11th August 2009 the Italian authorities removed the children from the care of the parents after several incidents where the children had ingested medication and required hospitalisation.

On 20th October 2009 the parents conceded they were struggling but they could care for the children with the help of Italian social services and the children’s grandfather. On 3rd December 2009 a psychiatrist concluded that the children should be reunited with their parents; the mother was following ‘pharmacological therapy’, was willing to undergo psychotherapy and had a very strong emotional bond with the children. The Italian equivalent of the children’s guardian agreed and recommended the reunification of the family with a support package.

On January 19th 2010 the Italian court ordered the return of the children. However, sadly in March 2010 the children were once again removed as the mother was hospitalised, had separated from the father and the grandfather was ill. There then followed a period of delay until the court ordered an expert’s report in October 2010. The report came in January 2011 and recommended that the children remain in foster care while contact with their parents was increased and the matter re-assessed in 6 months time.

However, the court rejected these recommendations and on 1st March 2011 ‘declared the children adoptable’ and contact ceased. The court relied upon the ‘serious mental problems’ of the mother and that the father could not show affection to the children and displayed aggression in his interactions with social workers.

The parents appealed but this was rejected by the Appeals Court in Rome in February 2012:

The Court of Appeal observed that the authorities had made the necessary efforts to ensure support to parents and to prepare the return of children to their families. However, the project had failed, which demonstrated the inability of parents to exercise their parental role and the lack of transitional nature of the situation. Based on the findings of social services, the appeal court emphasized that the project’s bankruptcy had had negative consequences for children and adoptability was to safeguard their interest in being welcomed into a family able to care for them adequately, that their family of origin was not able to do because of the mother’s health and the father’s difficulties. The Court of Appeal noted that there had been positive developments in the situation, as the awareness of the mother of her health problems and her willingness to follow a treatment course and the father’s efforts to find resources to take care of his children or the availability of the grandfather to help his son. However, according to the Court of Appeal, these elements were not sufficient for the purposes of assessing the ability of the parents to exercise their parental role

A further appeal to the Supreme Court failed. In February 2014 the mother attempted to revoke the adoption order but was unsuccessful and thus she applied to the European Court, claiming a violation of her rights under Article 8 of the ECHR, in that the Italian authorities had not met its obligation to provide support to keep the family together. The children ended up in 3 different places; not only did they lose their relationship with their parents, but also with each other.

The Italian Government argued that it had acted to protect the children; the first attempt to reunify the family had failed and the children had suffered harm to their emotional development.

The judgment of the European Court

The court commented at paragraph 41:

It is for each Contracting State to equip itself with adequate and sufficient legal arsenal to ensure compliance with its positive obligations under Article 8 of the Convention and the Court whether, in the application and interpretation of applicable law, the domestic authorities had respected the guarantees of Article 8, in particular taking into account the best interests of the child (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC ] No. 41615/07, § 141, ECHR 2010, KAB c. Spain, No. 59819/08, § 115, 10 April 2012, X c. Latvia [GC], No. 27853/09, § 102, ECHR 2013).

The crucial question here was whether, the Italian authorities had taken all necessary and appropriate measures that could reasonably be required of them for the children to lead a normal family life with their own families.

The court noted at paragraph 47:

The Court notes that the expert appointed by the Court envisaged a course of rapprochement between parents and children, with an intensification of meetings and a review of the situation after six months. The proposed solution was based on the existence of strong emotional bonds between parents and children, as well as the overall positive assessment of the capacity of parents to fulfil their role and their willingness to collaborate with social services. The Court noted that the expert in question was lodged at January 13, 2011 and only two months later, i.e. on 1st March 2011, the court, contrary to the indications of the expert, said children adoptable and ordered the suspension of meetings. The decision to cut immediately and definitively the maternal bond was taken very quickly, without careful analysis of the impact of the extent of adoption of the persons concerned and despite the provisions of the law under which the declaration of adoptability must remain the extrema ratio. Therefore, the court, in refusing to consider other less radical solutions feasible in this case, such as family support project envisaged by the expertise, dismissed any final opportunity for the project to succeed and for the applicant to reconnect with his children.

The court examined other authorities where the positive obligations of the state had been examined. It agreed it was not always clear cut where the decision should be made that a state had failed to meet those obligations and member states retain a ‘margin of appreciation’.

However, at para 57 the court commented:

The Court does not doubt the need in the situation of the case, an intervention by the competent authorities for the purpose of protecting the interests of children. However, [the court] doubts the appropriateness of the intervention chosen and believes that the national authorities have not sufficiently worked to save the mother-child bond. It observes in fact that other solutions were feasible, as envisaged by the expert and particularly the implementation of targeted social assistance that will help overcome the difficulties associated with the health status of the applicant , preserving family ties while ensuring the protection of the best interests of children.

At paragraph 54 the court very clearly re-stated the role of state agencies in this kind of situation; vulnerable people require greater protection:

The Court reiterates that the role of social protection authorities is precisely to help people in difficulty, to guide them through the process and advise, among others, on how to overcome difficulties (Saviny v. Ukraine, no 39948/06, § 57, 18 December 2008; RMS v Spain. no 28775/12, § 86, 18 June 2013). In the case of vulnerable people, authorities must show particular attention and must ensure their greater protection (B. v. Romania (no O2) n o 1285 to 1203, §§ 86 and 114, February 19 2013; Todorova v Italy. n o 33932/06, § 75, 13 January 2009; RMS c. Spain, no 28775/12, § 86, June 18, 2013; Zhou, cited above, §§ 58-59; Akinnibosun c. Italy, cited above, § 82).

Impact for English courts

Despite the very clear declaration of the President in Re B-S about the positive obligations upon States to keep families together and that adoption must be a ‘last resort’, it is clear that there is a tension between this obligation and the requirement that care proceedings must conclude as quickly as possible in or any event within 26 weeks. Access to mental health services is poor and parents will often find themselves on a waiting list for therapy, to be told this is ‘outside the child’s timescales’.

The salient facts here were the clear recognition of the strong bonds between mother and children and the fact that the consequences of failure to reunifiy the family were so serious, in that the children lost their relationship with their parents and each other. These considerations will not be present in all cases; proceedings involving babies removed at birth will not compell consideration of an existing bond, but whether or not that bond should be permitted to develop. That may well lead to decisions to remove that are considered proportionate.

However, this very clear re-statement by the European Court of what is mean by a state’s positive obligation towards families, is another interesting authority to suggest that the UK may find itself vulnerable to serious criticism at some future point.

For example, it is interesting to note the positive research about the impact and efficacy of the Family Drug and Alcohol Courts and yet this model is still not being rolled out nationally. Are we really confident that the way we approach care proceedings with a care plan for adoption, is going to survive scrutiny in the European court?

This post looks at the law in cases following the parents separation, when the parents can’t agree about how the children should spend time with each of them. In cases where there is no evidence that contact with a non-resident parent would harm a child yet the resident parent claims contact would not be in the child’s best interests, can courts force parents out of their entrenched positions?

Sarah Phillimore, barrister at St John’s Chambers, looks at the issue and offers some practical advice.

This article was published by Lexis on 19th May 2015 – you can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexisps

To what extent can or will the courts intervene to force parties out of entrenched positions?

Statute Law

The relevant statutory framework is found at section 1(1) and 1(3) of the Children Act 1989 (CA 1989). The child’s welfare is the paramount consideration and the court must have regard to the welfare checklist.

Section 8 allows the court to make what used to be called ‘contact’ and ‘residence’ orders but which are now ‘child arrangements orders’ following the Children and Families Act 2014 (CFA 2014).

The CFA 2014 also amended section 1 of the CA 1989 to include that when a court is considering a section 8 order, it must presume, unless the contrary can be shown, that the involvement of a parent in the life of a child will further the child’s welfare. ‘Involvement’ quite explicitly is not linked to any particular division of a child’s time. This amendment is thus very far from what father’s rights campaigners wanted; there is no presumption that children must spend their time 50/50 with each parent. It is difficult to see what practical change is provided by this amendment, as it offers a rebuttable presumption that is a reflection of existing law and practice.

General principles from case law.

Each case is unique on its own facts and requires careful scrutiny. However, there are general principles which are usually applicable to every case:

the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.

It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living. Contact should thus be terminated only in exceptional circumstances.

The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child to do so.

The state has positive obligations to protect the Article 8 rights of parents and children. Thus, the judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

There are rare cases where the court decides that there cannot be immediate direct contact because that would injure the child’s welfare, see Re D (A Minor) (Contact) [1993] 1 FCR 964 at pp 971G–972A per Waite, LJ.

If there cannot be immediate direct contact there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established

It is an important part of the obligations of being a parent that the parents take responsibility for making contact work – see paras 72 onwards of Re W [2012].

Potential problems with the courts’ approach.

In Re H-B (Contact) [2015] EWCA Civ 389, the court heard that direct contact with the father and his two daughters had stopped in 2008. There was an incident in which the father’s new wife had been angry with the older girl and grabbed her, causing a superficial injury. The father appealed against the refusal of his application for direct contact. Both parents were found to have behaved poorly.

The President of the Family Division considered the obligations upon parents when a child refuses contact with the other parent. See paragraph 75:

the responsibility of being a parent can be tough, it may be ‘a very big ask’. But that is what parenting is all about. There are many things which they ought to do that children may not want to do or even refuse to do: going to the dentist, going to visit some ‘boring’ elderly relative, going to school, doing homework or sitting an examination, the list is endless. The parent’s job, exercising all their parental skills, techniques and stratagems – which may include use of both the carrot and the stick and, in the case ofthe olderchild, reason and argument –, is to get the child to do what it does not want to do. That the child’s refusal cannot as such be a justification for parental failure is clear: after all, children whose education or health is prejudiced by parental shortcomings may be taken away from their parents and put into public care.

I appreciate that parenting headstrong or strong-willed teenagers can be particularly taxing, sometimes very tough and exceptionally demanding. And in relation to the parenting of teenagers no judge can safely overlook the teaching of Gillick v West Norfolk and Wisbech Area Health Authority and anor [1986] AC 112, in particular the speeches of Lord Fraser of Tullybelton and Lord Scarman. But parental responsibility does not shrivel away, merely because the child is 14 or even 16, nor does the parental obligation to take all reasonable steps to ensure that a child of that age does what it ought to be doing, and does not do what it ought not to be doing. I accept (see Cambra v Jones [2014] EWHC 2264 (Fam), paras 20, 25) that a parent should not resort to brute force in exercising parental responsibility in relation to a fractious teenager. But what one can reasonably demand – not merely as a matter of law but also and much more fundamentally as a matter of natural parental obligation – is that the parent, by argument, persuasion, cajolement, blandishments, inducements, sanctions (for example, ‘grounding’ or the confiscation of mobile phones, computers or other electronic equipment) or threats falling short of brute force, or by a combination of them, does their level best to ensure compliance. That is what one would expect of a parentwhose rebellious teenage child is foolishly refusing to do GCSEs or A-Levels or ‘dropping out’ into a life of drug-fuelled crime. Why should we expect any less of a parent whose rebellious teenage child is refusing to see her father?’

The ‘tough’ approach of the court cannot however be a a solution to the problem of intractable contact disputes, because it does not adequately or even at all address the following circumstances:

The increasing autonomy of the older child.

The resident parent who simply will not or can not support a relationship with the other parent.

The older child

For older children, the suggestions by the President that it is a straightforward matter of simply exercising a bit of parental muscle to bribe or compel a child, does not reflect the reality of the child’s growing autonomy. Various cases demonstrate that it is likely that the child will simply refuse to do what is expected and may even react in quite extreme ways to the expectation: see for e.g Re K (Children) [2014] EWCA Civ 1195 where the children simply ran away.

Of course, parental responsibility does not ‘shrivel away’ when dealing with a Gillick competent teenager, but as a child’s autonomy develops, the ability of a parent to impose his or her will inevitably decreases. A parent simply cannot dictate to a 15 year old as if he were 5 or even 10 years old. To do so is likely to be emotionally abusive and ineffective.

This is reflected in section 9(6) of the CA 1989; section 8 orders will only be made for children over 16 if the circumstances are ‘exceptional’. In reality, many judges will be wary of imposing orders upon teenagers even younger than 16; recognizing that they can and do ‘vote with their feet’.

The parent with whom the child lives does not support contact

This second part of the problem is not even touched upon in re H-B; the mindset of the resident parent and the impact of this on the child. The likely reality in many cases is that the resident parent has consistently exposed the child to a very negative view of the absent parent. In terms of the impact of this on the child, it probably doesn’t matter what motivates the resident parent, be it genuine belief or something more malicious. The child will absorb the resident parent’s reality. What else can they do?

These problems are then further compounded if the child has not seen the absent parent for some time and/or was very young at the last meeting and therefore has little or no independent memory of the absent parent.

In such cases, experts consider it unlikely – even impossible – that a child living in such circumstances can start thinking positively about the absent parent. The resident parent will assert that it is simply not in the child’s best interests to have this positive view. It is not possible to force therapeutic work on an unwilling resident parent.

What can lawyers to either stop this happening or intervene positively when it does?

Unfortunately, it is my view that the ability of lawyers or the courts to have much positive impact on the more extreme examples of intractable dispute, is very limited. This is because these are not legal problems. They arise out of the psychological vulnerabilities of one or both of the parents. Even if parents could be persuaded to go to family therapy or family mediation it is unlikely that many could afford to do this and no state agency can be compelled to pay. The court room is clearly a very unsuitable arena to try to deal with the often toxic emotional fall out from failed adult relationships.

However, there are elements to these proceedings that the lawyer can influence and the court can attempt to dictate, which may have a positive influence on the outcome – or at the very least reduce the time taken and the emotional and financial costs incurred. See further the judgment of Hedley J in re E (A Child) [2011] EWCH 3251 at paragraph 11 onwards and A (A Child) [2013] EWCA Civ 1104.

I suggest that the fundamental requirements are:

Careful analysis of the issues and the available options;

Which feeds into a realistic timetable, avoiding drift

Intractable contact disputes that go horribly wrong usually have dragged on over many years. This increases the child and the resident’s parent aversion to the whole process; they simply want it to end. Lawyers can help by trying to identify as soon as possible which of their cases are likely to turn into intractable disputes and then being clear sighted about the options which are realistic in their case. It is essential at the earliest possible stage, all agree a clear timetable for either achieving contact or recognizing that it is not achievable whilst the child remains with the resident parent. There will then need to be full and honest appraisal of the likely success if a child is removed from the resident parent – either into foster care or to care of non- resident parent.

Proper analysis of the available options and the impact of each on the child’s welfare requires knowledge and understanding about what is in reality available to a family; little point in considering ‘specialist family mediation’ for example, if there are no providers within a reasonable distance or no one can afford to pay for it.

The following considerations may help this process:

Clear analysis at the earliest stage as to the degree and nature of opposition to contact. How objective and reasonable is the opposition? How flexible are the parents prepared to be? How quickly did problems escalate? Warning bells will start to ring at an early stage and should not be ignored.

If the non-resident parent does not accept the objections raised by the resident parent, consider an early fact finding so that there is a clear understanding of potential problems. Courts are often reluctant to go down this route (see Re E, para 11), worried that parents may simply focus on allegations against each other rather than the welfare of the child. However, this risk needs to be considered against the problems that can be caused by allegations that are never confronted and which linger on throughout the proceedings, to the detriment of any resolution;

If a case shows signs of being intractable, judicial continuity is very desirable;

Robust enforcement of any contact orders made at an early stage – don’t let this drift, bring non-compliance straight back to court. Be clear about why it hasn’t worked – did the resident parent fail to encourage? Did the non-resident parent fail to comply, for e.g. with indirect contact?;

The non-resident parent should be prepared to make reparation for any behaviour that has contributed to the resident parent’s distrust – not every case involves an absent parent who is wholly without reproach;

Making timely decisions about when a guardian or expert evidence is required. If the resident parent for example refuses to accept the outcome of a finding of fact this is usually the time when it is abundantly clear more needs to be done;

Exploring if there is any possibility of any help via therapeutic intervention/specialist mediation and how this is to be funded, etc

If it becomes clear that contact is not achievable whilst the child is living with the resident parent, there must be proper analysis of the available options and the impact on the child’s welfare of each – for example, should the court be invited to make an order under section 37 of CA 1989 for an interim care order so that the child goes into foster care?

However, the fundamental issue will always remain; these are not legal problems. Lawyers and the courts have poorly designed and often ineffectual tools at their disposal. But unless and until a more effective arena is available to tackle the problem of intractable contact disputes, we will have to do our imperfect best.

Further reading

See Re H (Children)[2015 EWCA Civ 1216 for another sad example of the limitations of the court process in attempt to resolve disputes between parents.

I’ve always felt that these young people don’t stand a chance in life, there are massive stumbling blocks along the way…

This is a response by Kate Wells to the recent article by Louise Tickle in the Guardian on April 25th 2015. Kate is a retired social worker of many years experience. She agrees that more needs to be done to help young parents who have suffered abuse and trauma in their own childhoods – but she is not optimistic that therapeutic intervention will be the solution that some hope for.

I read the article in the Guardian on Saturday “Are we failing parents whose children are taken into care” and the concern expressed by Judge Stephen Wildblood QC and barrister Judi Evans, about the lack of help for parents caught up in care proceedings.

For very many years I have worked with people who live on the margins of society and are amongst the most deprived and disadvantaged people in society. I’ve met many “Leahs” who have suffered childhood trauma, be it sexual abuse, physical/emotional abuse or severe neglect and are ill equipped to provide good enough parenting to their own children – it’s often a case of “children bringing up children” as there is a significant gap between the chronological and emotional age of these young mothers. Typically they form relationships with young men with similar backgrounds and end up in a high rise flat, experiencing a range of difficulties – financial problems, mental health problems, learning disabilities, domestic violence, isolation, lack of support, drug/alcohol abuse etc.

I’ve always felt that these young people don’t stand a chance in life, there are massive stumbling blocks along the way and it’s small wonder that apathy sets in and they look for some relief in drugs/alcohol. And as the article highlights when one or two of the children are removed, they become pregnant again, and are involved in “serial monogamy” which is an added problem as now there are “step children” in the mix.

How easy is it for people to change?

Why ‘love matters’ – the importance of the early years

I share the concerns of the Judge and the barrister but I suppose I am not as optimistic about the possibility of change, especially when childhood trauma is the root of the problem. I too have read many psychological reports talking of parents needing therapy for 2/3 years whatever…..and I’ve always felt that was a cop out as any competent therapist will know that it could take many more years of therapy with no guarantee of sufficient change to enable good enough parenting, plus there is the issue of cost, with private therapists charging approx. £50 per hour and very little available on the NHS.

The thing is I have an absolute belief that the die is cast very early on in life, and right from the child’s earliest hours, days, weeks and months, the foundation will be laid, positively or negatively and the first year of life is of extreme importance developmentally, and by 3 years of age, the foundation is laid for the rest of the child’s life.

There is even evidence that a baby in utero can be affected by tension in the mother, domestic violence etc. Sue Gerhardt a psychotherapist whose work has been primarily concerned with working with the disturbed or malfunctioning relationships between babies and their mothers, explains in her book “Why Love Matters” the way in which there is evidence that the quality of care a baby/child has in its early life can affect the pathways in the brain, and the development of our “social brain” and the biological systems involved in emotional regulation.

The challenge then was for her to put this scientific knowledge of human infancy at the centre of our understanding of emotional life. Most importantly and of particular interest in the debate about the success (or otherwise) of therapy for parents struggling with providing good enough care for their babies, her research led her to the view that if the will and resources were available, the harm done to one generation may not be transmitted to the next: a damaged child need not become a damaged and damaging parent.

Gerhardt acknowledges that well intentioned governments have recognized the need to support family life, and have put measures in place to do so, e.g. tax credits and parenting classes. She stresses how politicians are well aware of the cost to society of dysfunctional families with the links to crime, violence and drug abuse. She uses the analogy of meagre efforts of support to families, to pouring money into the maintenance of a badly built house, the problems due to poor foundations may be temporarily alleviated, but nothing will change the fact that the house was not well built and will always be high maintenance. Likewise with human beings whose foundations have not been well built. Although extensive repairs can be undertaken later in life, the building stage, when adjustments can be made, are largely over. For prevention to be effective it needs to be targeted at the point when it can make the most difference.

Can later intervention have an impact on early deprivation?

To return to the issue under debate – “These foundations are laid during pregnancy and in the first 2 years of life. This is when the “social brain” is shaped and when an individual’s emotional style and emotional resources are established.”

Exactly what resources would be needed to provide parents with the “therapeutic tools” to ensure that they understood the importance of the need for a pregnancy free from tension and stress and how to make secure attachments with their babies in their first 2 years of life, is not detailed in Gerhardt’s book. I think she has made some remarkable discoveries in relation to how the development of the infant’s brain can affect future emotional wellbeing, backed up by the latest findings in neuroscience, psychology and biochemistry, but I remain skeptical about both the specific resources that would be needed and more pertinently about the availability of funding for such therapeutic intervention.

The parents (like most of us) only have one model of parenting, which was abusive/neglectful and so will repeat that pattern with their own children, just like people who have had a secure and nurturing childhood will repeat that pattern with their children. I don’t mean that every abused child will go on to repeat that pattern as some parents ensure that their children do not suffer as they did, but we are talking about parents and children caught up in care proceedings.

We’re talking of course about the “cycle of deprivation” and no one has ever found a way of breaking into that cycle. I am old enough to remember Keith Joseph (Tory Minister of State for Education and Science) horrifying us all in 1974 by declaring that “classes 4 and 5 should be prevented from breeding.” The present government talks of “troubled families” but this is a euphemism of course, as families in receipt of state benefits are referred to as “benefit units” in Universal Credit speak, but I digress………

The true cost and consequences of childhood trauma

I realise I might sound like a “fatalist” but I don’t believe that therapy can in fact help the majority of parents who have themselves suffered childhood trauma – indeed I think the Judge’s comments about a parent being offered therapy at the beginning of the pregnancy (or when one or more child/ren have been removed) demonstrates a complete lack of understanding of just how much emotional harm has been inflicted on the young parent in their own childhood, and how that continues to cause emotional pain through the lifespan.

None of us can know how it feels – we can only imagine, but I have spent many hours sitting in smelly, grubby flats with a young mom who is mildly depressed, she hates the flat, she and the boyfriend are arguing, she has no money, there’s little food in the kitchen and the toddler lies listlessly on the floor sucking from a bottle, the TV is on and an older child of 3 or so is staring vacantly at the screen and when bored, starts to tussle with the toddler and is dragged off by his mom and shouted at – he starts to cry and throws himself on the floor and she tells him to shut the fuck up…..there are a few broken toys and the situation is indeed bleak. The children are still at home but there is growing concern and if eventually they are removed, will she benefit from therapy to help her keep any more babies that she will have. Maybe, but I think the “damage has been done” many years ago and like “Leah” she will carry that emotional pain with her, and prevent her from being a good enough parent or being able to sustain relationships and have any kind of fulfilling life.

What can we do?

Having said all that I certainly think the FDAC is an excellent idea. I am really surprised that a Judge has set this up and another Judge is replicating the programme elsewhere. Are they human after all!? Judi does make the point of course that not every parent will be able to access any therapy that is set up, but if it means that some parents can be helped to prevent their child being removed, then it has to be a success.

I think another way of helping young parents is for LAs to recruit and train more foster carers who are able to take “child and parent” placements. We had just 2 in our area and were carefully chosen, as they absolutely had to have empathy with the young parents, empathy in spades, because any whiff of judgment or even criticism would defeat the object. There was a varying degree of success, but the resources were not available to extend the scheme and this was back in 2000, before the budgets were cut to the bone.

But who will pay for it?

There is also the issue of finance for therapeutic intervention as advocated by the Judge. I wonder if he is aware of the way in which this coalition has demanded massive savings from all public services (including legal aid) so this can’t have escaped his notice! There was never sufficient funding for therapy when I was working for the LA (and retired in 2004) and now they are struggling to cope with their statutory responsibilities, as are the NHS, police, teachers etc. And if this government are re-elected they will shrink the state to the size it was in the 1930s and will pursue their agenda of privatisation for all public services, whilst cutting more and more from benefit claimants.

There is mention of “Leah” being left without support, and only offered a room in a hostel, but again Housing Authorities under the Housing legislation have no duty to house single homeless people and demand for housing far outweighs supply, and so where does the blame lie? With politicians who make the law surely. I don’t suppose there are many Labour voting Judges, or barristers for that matter, though that may be unfair.

I really will end now……..be interested in your thoughts.

Further Reading

You may be interested in reading further about the research of Karen Broadhurst, funded by the Nuffield Foundation which looks at the issue of mothers who have successive babies removed from their care. This is known as ‘recurrent care proceedings’.

The website for the study is here. The overall aim of this study is to generate evidence to inform service development in respect of the timing, content and mode of delivery of services designed to intercept a cycle of recurrent care proceedings. Further quantifying recurrent care proceedings at a national level will also provide policy makers with the necessary data to enable the economic costs of this problem to be estimated.

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.

However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

The most likely Articles of the ECHR which are in play in regard to child protection cases are:

Article 8 – the right to respect for family and private life;

Article 6 – the right to a fair hearing.

For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality.For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post.

The requirements of the Human Rights Act 1998

What is an unlawful act and what is a public authority?

‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.

A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act. There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].

It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017).

What remedy can you get?

Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.

This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts.

Article 41 of the ECHR

This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK[2002].

General principles about awards of damages pursuant to Article 41

A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.

Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.

The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

The concept of ‘just satisfaction’.

The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.

damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;

the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;

That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.

In the case of H (A Child – Breach of Convention Rights: Damages)[2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82:

It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.

The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.

This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.

The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:

Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.

Insufficient involvement of the parent or child in the decision making process

Other procedural failures.

WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor[2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.

What did the Law Commission say?

The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:

The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…

The implication of the costs of proceedings

Guidance and warning from Anufrijeva

The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.

The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be ‘rough’. The court also sounded this note of caution:

The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.

The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:

The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.

The claimant will need to explain why it isn’t more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.

other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.

These warnings have been repeated in later cases, most notably by Cobb J in SW & TW [2017], cited above.

Other issues regarding HRA applications

Limitation periods: You must make your claim within a year if its a ‘free standing’ application.

But the court does have discretion to extend that time. Section 7(5) provides that:

‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Injunctions under the Human Rights Act

It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.

I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).

BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.

The impact of the legal aid charge – can it ever be worth making a claim?

It is now beyond doubt that the Legal Aid Agency will seek to recover its costs from the amount of damages awarded. This is set out in the Statutory Charge Manual [2014]. Thus, if an application is made under the HRA in existing proceedings – as the court advises should happen – an applicant is likely to have already incurred significant legal costs which are likely to wipe out any award of damages.

The purpose of the Statutory Charge, as set out in the Manual is as follows.

put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v. Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98).

ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and

deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.

There are exemptions from the charge – see page 31 onwards of the manual – but the HRA does not appear. The Manual itself runs to 108 pages which gives you an idea as to its complexity.

The court dealt with this from para 46 onwards. The parents and the child were each awarded £3,750 as ‘just satisfaction’ after the child was removed at birth for about three weeks and the LA later conceded they had no evidence to justify this. However, the court was clear that the damages were likely to be eaten up by the statutory charge and was critical of the failure by the parties to adopt a proportionate approach to this issue.

Can anything be done to avoid the statutory charge?

Free Standing applications

It seems sensible to consider making a free standing application under the HRA which is not then linked to the costs incurred in any other proceedings, as this may help keep any costs at a lower level. However, applicants will need to be very careful of criticisms levelled by the courts at those who do not raise human rights issues in their existing proceedings.

See also the case of P v a Local Authority [2016] EWHC 2779 for a decision where the statutory charge was held NOT to apply to an award of damages. There is commentary on this case by suesspiciousminds who points out that this case probably won’t be a ‘road map’ for future cases as there were two major differences between this case and other HRA cases: namely that the HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all and the LAA had been asked to fund a damages claim and had refused.

Section 17 of the Children Act 1989

Further discussion with colleagues suggests that the LA could pay money under section 17 of the Children Act 1989 which deals with the provision of services to children in need and their families; section 17(7) allows the LA to make payments in cash. There is also the general wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person.

However, payments made under either Act are unlikely to be an attractive option to LAs as they would come out of social work budgets whereas a court order to pay damages would be met by insurance. Nor is it enforceable, if the LA say they will pay but then go back on their offer.

Costs orders

Give consideration to asking the court to make a costs order against the other side. It is now clear that these applications are governed by the CPR and therefore the starting point for costs will be that the loser pays. However you will need to consider your own litigation conduct and attempt to make realistic and genuine attempts to settle.

Making a complaint pursuant to section 26 of the Children Act 1989

A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.

The only problem with this approach is that for those acting on behalf of the child there’s little room for negotiation over the amount of money offered, because once proceedings have finished the children’s guardian doesn’t have any standing to pursue a HR application

Damages awarded in other cases

P, C, S v the UK[2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.

GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.

London Borough of Hackney v Williams and Anor[2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)

CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Further reading

For an interesting overview, see this article by barrister Julie Stather in Family Law Week

Prior to the implementation of the Human Rights Act 1998 (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take ‘direct effect’ in domestic legislation.

Section 6 of the HRA and makes it clear that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.

If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.

For useful discussion about how Parliament in the UK and the European Court interact, see this discussion from the House of Commons Library blog about parliamentary sovereignty and the European Convention.

There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) … from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

A note of caution – disappearance of ‘human rights’ from the ‘Working Together’ guidance.

‘Working Together to Safeguard Children’ is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.

However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to ‘data protection’ and no reference whatsoever to ‘human rights’. There is legitimate concern that the boundary is becoming blurred between children who are ‘in need’ and require help and children who are ‘at risk’ and require protection and the ‘air brushing’ out of any reference to human rights in the guidance is thus regrettable.

As Allan Norman comments:

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Article 8 – Right to respect for private and family life

The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Therefore, we can see that Article 8 rights are not ‘absolute’ but can be over ruled when:

it is lawful to do so;

it is necessary to do so, for example, to protect health or morals.

The ambit of Article 8 rights

As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

With regard to the ambit of ‘family life’ Article 8 covers:

Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’.

How do we decide if Article 8 rights should be over-ruled in a particular case?

This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.

For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be ‘proportionate’ to demand that this parent give up his or her children for adoption or even have the children go to live with foster carers for a short time.

A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.

However, if a child is seriously injured at home and his parents can’t or won’t say what happened, then it probably will be proportionate to remove the child immediately from his parents’ care.

The issue of proportionality was discussed by the Supreme Court in Re B in 2013 when considering an appeal against the trial judge’s decision that it was proportionate to remove a child for adoption.

115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, “is this necessary”. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.

For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].

Is the Children Act 1989 compatible with Article 8 of the ECHR?

Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post.

When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.

One challenge was to the fact that once a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10. The lawyers argued that the court should continue to oversee what the LA was doing by way of ‘starred care plans’ – which identified issues in the care plan which should be kept under review and brought back to court if necessary.

The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply ‘interpreting’ the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8.

53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of ‘respect’ for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.

54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority’s intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child’s primary article 8 rights: see paragraph 45 of his judgment.

55. Further, the local authority’s decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.

56. However, the possibility that something may go wrong with the local authority’s discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does notmean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child’s welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority’s failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child’s care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority’s discharge of its parental responsibilities is itself an infringement of article 8.

Reforms following this decision

However, although the House of Lords rejected the idea of ‘starred care plans’, they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child’s human rights.

Lord Nicholls said at paragraph 106:

I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

The Independent Reviewing Officer

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The job of the IRO is to improve outcomes for looked after children by reviewing each child’s care plan and ensure that the child’s wishes and feelings are considered. They must:

monitor the local authority’s performance of their functions in relation to the child’s case

participate in any review of the child’s case

ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority

perform any other function which is prescribed in regulations.

promote the voice of the child

ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child’s needs

identify any gaps in the assessment process or provision of service

making sure that the child understands how an advocate could help and his/her entitlement to one

offer a safeguard to prevent any ‘drift’ in care planning for looked after children and the delivery of services to them

monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child’s wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.

What can I talk about? Who can I talk to?

‘I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

Sir James Munby, President of the Family Division

The issues of transparency and openness in the family courts have provoked much debate. The need for family courts to be ‘private’ to prevent intimate details of family life being published is criticised by many as simply ‘secrecy’ which prevents the public from knowing what is going on. The trend is towards greater openness to reflect the public’s legitimate interest in the workings of the family court but there are still quite significant limitations on what you can and cannot say about care proceedings and who can come into court.

This post will cover

A summary of the current position

The developing history of principles about transparency

Statute law and rules relating to transparency

Case law and guidance

Other issues

journalists in court

recording court proceedings

participating in research.

Summary of the current position

The general rule is that you can’t talk about or publish information about care proceedings. This would include publishing on social media, such as Facebook etc. This is due to worries about children being identified and details about their family circumstances becoming widely known. Children do not get a choice about whether or not they are part of care proceedings so it is felt to be very unfair to publicise circumstances that they might find very embarrassing or shameful.

This is a principle of longstanding. See Scott v Scott [1913] AC 417 and the comments of Lord Shaw of Dunfermline at p 483:

The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.

Generally only people who are parties (directly involved) in the proceedings can come into court. Often courts will be sympathetic to requests that a friend or family member can sit in court to provide moral support, but this is not always permitted. Journalists may be able to come into court but there are serious restrictions as to what they are allowed to report.

16th January 2014, the President of the Family Division published Practice Guidance relating to transparency in the Family Courts. The purpose is to improve public understanding of the court process and confidence in the court system by increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).

For a useful summary and discussion of where we are following the case of re J see this article by Dr Julie Doughty of Cardiff University. She quotes the position as set out by suesspcious minds:

‘…a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.’

We will examine this position in more detail below.

Historical development of the current complicated position

We are here in an area regulated in part by statute law, in part by the common law and in part by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The statute law is a mosaic of ill-fitting pieces without any discernible overall objective. And the judge-made law is complex. There is a rich and subtle jurisprudence expounding the meaning and effect of section 12 of the 1960 Act, another rich and subtle jurisprudence explaining the circumstances in which the court can or should either relax or increase the automatic restrictions, and another rich and subtle jurisprudence identifying the various Convention interests which, typically, are engaged in such cases and explaining how they are to be balanced. Now the jurisprudence may be rich and subtle, but it is not easy either to access or to understand unless one happens to be steeped in it – which even most family lawyers are not – or one has the time and the inclination to undertake what may be quite time- consuming research.

The consequences are hardly acceptable. There are few such well-tilled areas of the law which have been so bedevilled by myths, misunderstandings and, indeed, plain errors on the part of lawyers.

We will here attempt to unpick the various strands of statute and case law which govern this important issue.

What does Parliament say?

The High Court has the power to reduce or increase any statutory restrictions on publication, by using the inherent jurisdiction. This will be discussed in more detail below. See further Practice Direction 12D.

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish any material which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

A breach of section 97(2) could mean you have committed a criminal offence, but you will have a defence under section 97(3) if you didn’t know or suspect that the published material was intended or likely to identify the child.

The court can dispense with the requirements of section 97(2) if they think the child’s welfare requires it. For example, if a child goes missing and publicity could help find him. For an interesting example of when this was done see discussion around the Minnock case in June 2015.

‘Publish’ is defined in section 97(5) and includes in a programme as defined by the Broadcasting Act 1990. ‘Material’ covers any picture or representation. Section 97 stops applying once the proceedings have ended.

Section 12 Administration of Justice Act 1960.

Something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

Under section 12 you can’t publish accounts of what went on in front of the judge sitting in private, documents filed in the proceedings, including extracts, quotations or summaries of such documents. There is no time limit so it operates even after the proceedings finish.

The identity of witnesses in care proceeedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F …the belief seems to have lingered on well into the 1980s … Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court … At one time, and even after the Court of Appeal’s decision in In re F, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words “information relating to proceedings before [the] court sitting in private”.

For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged … It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom. … In contrast, section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings.

For an example of how consideration of section 12 can cause problems for even the lawyers, see this discussion from the Transparency Project.

This replaced section 39 of the Children and Young Persons Act 1933 in all criminal courts except youth courts. It gives the court the power to prevent any newspaper revealing details that might identify a child or publishing a picture of the child in court proceedings.

It is no longer a criminal offence for a party to family proceedings involving children to disclose orders to other individuals or bodies, so long as disclosure is not made to the general public or any section of the general public, or to the media.

Nor is it a contempt of court to disclose information where there are rules allowing people to communicate some information in certain circumstances.

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

a party to the proceedings;

the legal representative of a party;

a professional legal adviser;

Cafcass

the Legal Services Commission;

an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;

a professional acting in furtherance of the protection of children;

an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

The court can also give permission for you to disclose to someone not on this list. See Rule 12.73 (1)(b). However, Any relaxation of the prohibition on publication must ‘be clear and specific. It cannot amount to a blank cheque’ (see para 42 K (A child: Wardship: Publicity) (no 2) [2013] EWHC 3748.

See also Practice Direction 12 G which at paragraph 2.1 provides a table of people who can share information for a particular purpose, for example a party to care proceedings may disclose whole or part of a judgment for the purposes of a criminal investigation.

See further Rule 12.75. If it is ‘necessary’ to share information about the proceedings to enable a party to get advice, support or assistance in the conduct of proceedings or to attend mediation or to make a complaint then you can do that – but if you are talking to for example a family member to get support, that family member must not pass on the information to anyone else. The test of ‘necessary’ is a high one.

What do the courts say?

The general trend is towards less restriction in what can be publicized. This is a recognition of the inevitable – the ease of access to the Internet means that information can be published by anyone across the world by the click of a button.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Guidance and case law

The President of the Family Division produced guidance in 2014 as to when judgments in family cases should be published. This guidance was considered in the case of C (A Child) in 2015.

But what about wider information about the case, including the identities of the people involved? Usually any judgment delivered by the court will contain a ‘rubric’; which is an introductory paragraph before the main judgment, which explains what you are allowed to do with the information within it.

A standard rubric will say something like – the Judge allows this judgment to be reported, provided that you don’t identify the parents or children. This rubric has the effect of ‘cancelling out’ section 12 of the AJA and means anyone who publishes the judgment can’t be convicted of contempt of court if they obey the judge’s instructions.

The legal effect of this rubric is uncertain. This was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:

Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.

So what happens if you want to identify yourself? Or discuss the case more widely?

You will need to get a court order. Otherwise, if you do something contrary to any rubric to the order or any statutory provision, you could be in contempt of court.

The case of Re Webster: Norfolk County Council v Webster and Ors [2007] 1 FLR 1146 identified 4 important factors for the court when it considered whether or not to allow information about a case to be publicised:

The case was alleged to involve a miscarriage of justice

The parents wanted publicity

The case had already been extensively publicized

There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

A more recent case is that of Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18.

This case involved J, one of the parents’ four children (all of whom went on to be adopted). J’s father posted on the internet various pictures and film of J being removed from the parents’ care, describing what he had published in these kind of terms:

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

Here is an interesting article about this case, in particular the ironic consequence that in attempting to restrain the father from posting his videos on the internet, the LA ensured that he received a great deal of publicity and probably more people saw the videos than would have done if they had not applied for the order.

The four propositions and the ‘ultimate balancing act’.

In Re K (A Child: Wardship: Publicity) [2013], the adopted parents of a girl known as ‘Katie’ (not her real name) sought a declaration that it would not be a contempt of court if they published information in the media about certain information relating to their parenting of Katie, who suffered from Reactive Attachment Disorder, of working with the Coventry City Council and the family justice system in general. One of the most important aspects of this case was Katie’s urgent need for therapy and the Judge had been critical of the local authority for not providing it.

HHJ Bellamy set out at paragraphs 54 -63 the approach the court should take when deciding to relax the statutory provisions which prohibit publication.

He identified four propositions

neither Article 8 nor Article 10 has precedence over the other

where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

the justification for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each. This is ‘the ultimate balancing test’.

He considered the decision of the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11 where the position was summarised in this way:

[58] … each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.

Although neither right takes automatic precedent over the other, it is worth remembering that they are different in quality. Article 8 rights are by their nature of ‘crucial importance to a few,’ while Article 10 rights are typically ‘of general importance to many’. Thus the court must be on guard not to undervalue and erode the rights of the many when faced with objections from a few. See further A (A Minor) [2011] EWHC 1764.

The disinfectant power of forensic sunlight

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. Louis D Brandeis, US Supreme Court Justice

The President of the Family Division said this in re J [2013] :

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

The Judge went on to quote approvingly the phrase ‘the disinfectant power of forensic sunlight’ concluding that the answer to the growing distrust of the family law system in certain quarters, could only be met by increased openness and transparency.

The workings of the family justice system could be subject to legitimate public debate and even if some of the things said in that debate were offensive or mistaken, it was not for the law to intervene unless what was said was defamatory or contrary to criminal law. The only justification for restraining the parents from publishing material was if it would identify the child.

The Judge concluded

82. Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

Guidance from Local Courts

HHJ Bellamy’s guidance to the Leicester and Leicestershire Family Justice Board in July 2015 looks at the current state of the law and sets out general guidance for how the courts should deal with the issue of transparency and publication of judgments:

The decision to give permission for a judgment to be published is a judicial decision. It is a decision that can be appealed. See Re C (Publication of Judgment) [2015] EWCA Civ 500

Whether or not the judgment is one which the Guidance indicates should normally be published, if the judge considers it appropriate to give permission to publish then the parties should be informed at the time the judgment is handed down.

If the judgment has been prepared in anonymised format, the parties are under a duty to draw the court’s attention to any perceived inadequacy in the anonymisation. This is a process which requires careful attention to detail. The court should set a time limit within which any points about the anonymisation of the judgment should be made.

If the judge indicates that she proposes to give permission for the judgment to be published it is open to a party to seek to persuade the court that upon a proper application of the ‘ultimate balancing test’ permission should not be granted.

If advocates need time to martial their arguments with respect to the question of publication they should ask the judge for a short adjournment to enable submissions to be prepared.

Submissions must be focussed on the competing Article 8 and Article 10 rights that are engaged and on the ‘ultimate balancing test’ which the court is required to undertake. It is not sufficient, for example, simply to state that a party does not agree to the judgment being published.

If, having considered the submissions, the judge remains of the opinion that permission to publish that judgment should be granted and the party opposing publication wishes to appeal against that decision then a request should be made to the judge for permission to appeal and for a stay pending the hearing of the appeal.

An ‘accredited media representative’ may attend private hearings in family proceedings but the court may ask them to leave for all or part if any party requests it. The media representatives must be allowed to argue why they should be allowed to stay. But given the limits on what can then be published, this right to attend court does not take the journalist much further forward.

Writing in The Times on 28th April 2009, Camilla Cavendish, a leading campaigner for greater transparency in the family courts, made the point that “The door is open, but we desperately need more journalists to pick up a torch and walk through it”. That has not happened. In my experience media attendance in the family courts is rare. In the last six years there has only been one occasion when a duly accredited media representative has been present in my court. I believe that that is the experience of most family judges.

There are a number of reasons for this. These include, in particular, lack of advance notice of the cases coming before the court, lack of the resources needed to be able to send reporters into the family courts on a regular basis, lack of access to court documents, and the fact that the media can report only that limited information the publication of which does not breach the provisions of s.97(2) Children Act 1989 and s.12 Administration of Justice Act 1960.

The fact that the media rarely attends hearings in the family courts does not mean that the media has ceased to be interested in family justice. What it has meant is that there continues to be a tendency for journalists to publish reports about cases based only on the invariably tendentious accounts given to them by aggrieved parents. There are still references in the media to the ‘secret’ Family Court.

As a general rule, don’t show your court documents to anyone who claims to be conducting research unless they can show you written proof that this has been approved. It doesn’t matter if these researchers are based abroad.

Thanks to suesspicious minds for this paragraph.

I want to record court proceedings

If you record court proceedings without the court’s permission, this will clearly be a contempt of court and could be very serious, depending on what you go on to do with the recording.

If you want to record interactions with social workers or other professionals outside the hearing then you don’t need their permission and it is not unlawful in and of itself. Section 36 of the Data Protection Act 1998 states: “Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.”

Bu you need to be aware of the negative impact this could have on the relationship between yourself and the professional, particularly if you do it without warning them..

Reform proposals

On 15th August 2014, the President of the Family Division issued a consultation paper called The Next Steps. The President is inviting comments about how well the current transparency Practice Guidance from January 2014 is working, and whether steps can be taken to provide more information about cases when they are listed in court, without naming the parties. Views are particularly welcome on:

The impact on children and families, both immediate, short term and long term. I have in mind, for example, the risk of a child in later life coming across an anonymised judgment about his background and learning details of it for the first time.

The impact on local authorities and other professionals.

Any change in the level and quality of news and reporting about the family justice system.

This follows from the President’s ‘12th View’ in June 2014, where he set out that his intention to begin discussion and consultation about hearing some family cases in public. But there is evidence that this will not be a popular move for the children concerned.

Further reading

See an interesting article from Pink Tape here about the dangers of inaccurate reporting in the name of ‘transparency’.

Here is an interesting article by John Bolch which argues against any assumption that family courts are ‘secret’.

In this post we shall look at the ways the law may permit the removal of a child from his parents before all the relevant evidence has been gathered together to be put before a Judge at a court hearing,

A child can lawfully be removed without your consent before the final court hearing by either the police or a court order. If you do not consent, any other attempt to remove your child is unlawful and should be challenged. Lawful removal of children takes place in these ways:

The issue of removal before a final hearing is one of the most difficult and controversial issues in care proceedings. We shall look at Interim Care Orders and Emergency Protection Orders in more detail here; the police have only limited powers to remove for up to 72 hours.

When is it right to remove a child on a ‘interim basis’ i.e. before all the evidence has been heard and considered by the Judge at a Final Hearing?

These cases are often very finely balanced – if a child is taken from home and goes into foster care for a few months and then is returned home, this obviously has the potential to cause the child (and the parents) a lot of emotional upset. However, if a child isn’t removed from home when he should have been, the child could be left in a dangerous situation for a number of months before a final hearing can be listed.

So this issue has generated a lot of discussion and case law, particularly as Local Authorities reacted to the tragic death of Peter Connelly in 2007 and were keen to intervene to prevent another child dying or being seriously injured.

The court’s response to the feared harm to the child MUST be proportionate, to avoid an unlawful breach of the parents’ and child’s Article 8 rights to a family life. See our post about Article 8 and proportionality.

Removal under an ICO

First stage

The first and important thing to be very clear about – the court CANNOT agree with a LA’s plan to remove a child from home before the final hearing under an ICO, unless it determines an interim care order is lawful in the first place. Interim care orders come under section 38 of the Children Act 1989. The court must have ‘reasonable grounds’ to believe that section 31(2) is satisfied i.e. that the child has suffered or is at risk of suffering significant harm.

Second stage

If the court does find it has the legal justification for making an care order, it then goes on to the second stage; is removing the child the right thing to do now?

This issue has generated a lot of case law. The case of Re GR in 2010 pulled together what the case law was saying about when interim removal was appropriate. Another useful case is the Court of Appeal’s decision in K (Children) in September 2014.

We can summarise:

separating a child from his parents at this stage in the proceedings is a very serious matter and must only be contemplated if the child’s safety demands immediate separation;

‘safety’ encompasses a wide range of issues, including physical and emotional; and

these safety issues must be identified with clarity so the evidence relating to those issues can be properly analysed (see K (Children) para 34, 36);

removing the child from his parents must be proportionate to the risk of harm to which he will be exposed to if he goes home;

Whether or not a decision is proportionate is decided by cross checking what other options are available; is a ‘more proportionate’ option than separation available? (see K (Children) para 37);

the court must be wary of being taken over by the perceived ‘urgency’ of a situation at the expense of taking the necessary time to make sure the relevant issues are identified (see K (Children) para 30).

that the decision taken by the court on an interim care order application must be limited to issues that cannot wait for until the Final Hearing; the court must NOT attempt to resolve issues which are going to be argued at the Final Hearing.

The reason that the court must not try to look at the wider issues in the case at an interim hearing is because it just wouldn’t be fair to anyone to do so. Interim hearings are usually arranged urgently and you will be lucky to get any more than a day of the court’s time to hear them. There simply won’t be time to give all the issues the attention they deserve. However, the court can’t ignore likely future outcomes and when considering what is in a child’s best interests must take account of all the circumstances and will concern itself with the reality of the child’s situation.

Proportionality is a key concept in family law, arising from Article 8 of the European Convention. Interfering with a child or parent’s right to a family life can only be allowed if it is in accordance with the law, necessary and proportionate.

Therefore, if the LA wanted to take a child from home at an interim stage because there were concerns about an untidy house or couple of incidents of shouting, that almost certainly would not be considered proportionate. But if the child had a broken arm and no one could explain how it happened, interim removal almost certainly would be considered proportionate.

What happens next?

The Court of Appeal reminds us that even when the court has decided it is right to make an interim care order it must be alive to what is going to happen to the child after the order is made and how the LA is going to exercise its statutory responsibilities. This evidence is ‘bound to be relevant to the welfare analysis and proportionality evaluation’.

Further reading

See the case of L (A Child) [2013] for further consideration of when a removal of a new born baby is lawful. In this case, the baby was returned to his mother’s care pending final hearing.

Here is an example of where the court allowed an appeal against an interim removal because of very serious irregularities in the procedure and a failure by the Magistrates to properly consider the legal test.

Emergency Protection Orders

There is obviously going to be some overlap between cases where the LA apply for removal under an EPO or an ICO.

One important difference between the two is that an EPO can only last for 8 days when it is first made and then can only be extended for a further 7 days. Interim care orders can last for a lot longer. See this article by Andrew Pack about how time limits for ICOs have been extended by the Children and Families Act 2014.

EPOs should only be used when a situation is urgent. It is essential that courts consider and apply the guidance in the case law about how to approach EPOs, given the serious consequences of making such an order.

Very serious reasons needed for an EPO

An EPO, summarily removing a child from his parents, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. Such an order should not be made unless the [court] is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety: ‘imminent danger’ must be ‘actually established’.

Both the local authority which seeks and the [court] which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the [court] approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.

The EPO must be a proportionate response to the concerns about the child

Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.

If the real purpose of the local authority’s application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a Child Assessment Order under section 43 of the Children Act 1989.

No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte [without notice to the other side] application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.

Proper evidence is needed to justify an EPO and parents need to know what it is

The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.

Where the application for an EPO is made [without notice] the local authority must make out a compelling case for applying without first giving the parents notice. An application [without notice] will normally be appropriate only if the case is genuinely one of emergency or other great urgency – and even then it should normally be possible to give some kind of albeit informal notice to the parents – or if there are compelling reasons to believe that the child’s welfare will be compromised if the parents are alerted in advance to what is going on.

The evidential burden on the local authority is even heavier if the application is made [without notice]. Those who seek relief [without notice] are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law.

Section 45(7)(b) of the Children Act 1989 permits the [court] to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the [court]…

The mere fact that the [court is under obligations to record the evidence] is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made [without notice] are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the [court] either before or during the course of the hearing; and (ii) what legal authorities were cited to the [court]. The local authority’s legal representatives should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the [court] or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide.

Is there an alternative to an EPO?

Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its parental responsibility only in such manner ‘as is reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the local authority shall exercise its power of removal under s 44(4)(b)(i) ‘only … in order to safeguard the welfare of the child’. The local authority must apply its mind very carefully to whether removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The [court] decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.

LA needs to keep the case constantly under review and arrange proper contact.

Consistently with the local authority’s positive obligation under Art 8 to take appropriate action to reunite parent and child, s 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to [the local authority] that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.

Section 44(13) of the Children Act 1989 requires the local authority, subject only to any direction given by the [court] under s 44(6), to allow a child who is subject to an EPO ‘reasonable contact’ with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.